By decision no. 1141 of 13 October 2015, the IP Court of Milan granted copyright protection to the interior design of the cosmetics chain Kiko stores against the competitor Wjcon s.r.l. which had fully incorporated in its shops the main elements distinguishing the decor project developed by the plaintiff.
The interior design’s protectability as “architectural work” under art. 2(5) of the Italian Copyright Law is not a novelty, but unanimously affirmed by scholars and confirmed by the courts to the extent that the design represents a creative outcome, not imposed by the solution of functional or technical problems (see Court of Milan, 2 august 2011). In this context, the creative character required for the protection is normally found in the selection, coordination and organisation of the architectural compounds in relation to the overall result achieved.
Applying those principles to the case at stake, the Court ruled that Kiko stores had creative character. The combinations of architectural compounds, characterised by a minimalist style, made by simmetry and simplicity, were not commonly used in commerce.
This judgment was the result of an overall assessment by the Court , considered that even if single elements were already used in the field, “that would not be capable of affecting the original and creative character of the overall environment”.
Since the opening of stores infringing the plaintiff’s copyright was accompanied by the slavish imitation of a number of commercial and promotional activities put in placed by the plaintiff, such as the clothing of the saleswomen and the format of website and advertising campaigns, the decision also held that the defendant committed parasitic unfair competition under art. 2598 no. 1 and 3 of the Italian Civil Code. It consists of the systematic exploitation of the plaintiff’s work and creativity, substantially at the same time or at least immediately after the plaintiff’s adoption of its specific commercial initiatives.
This decision should be considered together with the Apple stores’ EUCJ judgment (in case in C-421/13, Apple Inc. v Deutsches Patent- und Markenamt, see here).
To the extent that in those occasion the Court confirmed that the representation of the layout of a retail store may be registered as a trade mark, it results now that retail stores protection can be afforded by trademark, copyright, design and unfair competition law. As a consequence, companies could utilize cumulatively the mentioned intellectual property rights in order to obtain a perpetual monopoly for store designs.
This perpetual protection runs counter to the rationale of copyright and design protection which is limited in time and raises a number of anti-competitive concerns.