Luxury law: counterfeiting of male shoes - Le Monde du Droit: Le magazine des Professions

The shoe is cited in article L.112-2 of the Intellectual Property Code among the creation ones to constitute a work of the mind within the meaning of copyright.

In paragraph 14, it is assimilated to the seasonal clothing and adornment industries, commonly characterized by the need, dictated by the requirements of a still cyclical fashion, frequently derely the shape of their products.

There remains the question of the originality of the claimed model, a condition of its access to protection by copyright.

It is on this subject admitted that the creative effort of the author, characterizing the originality of a fashion creation, is to be appreciated with regard to the technical and cultural constraints linked to the kind of belonging of the object of.

With regard to male shoes, the case law has more precisely recognized the existence of fourgenres: the Richelieu, the Moccasin, the Garester and the Elastic Bottin, from which it will necessarily result from the common characteristics, however insufficient to characterize theOriginality of the law.

It follows that the creative effort characterizing originality can only relate to the combinaisonde elements of execution, giving the claimed model a particular physiognomy (see notammenten this sense: TGI Paris, 3rd ch., 3rd section, February 14, 2007, displayed.Berluti, Olga B./ Beauxsouliers: “(…) In the field of male shoes, the models offered for sale are related to genres (derby, moccasin, gyrees, elastic boots) which impose on each generalphysionomy and that, from then on, the creative effort can only relate to the combination of elements of execution which gives the classic model thus recreated a particular physiognomy ”;Correctly: TGI Paris, 3rd ch., 23 Jan.2001, AFF.Berluti, Olga B./ Gucci France: "In this case, it is not disputed that in the field of classic male shoe, the models offered in Lavente are attached as well as the Gucci support for four genres: the" Richelieu "style lace shoe, moccasin, gaiters shoe and elastic boot, these four generic models to each a clean general physiognomy.In view of these constraints, the court considers the creative effort in this area can only relate to the combination of execution elements which is the classical model thus recreated its own physiognomy ”).

Pursuant to these considerations to a moccan model, the Paris court (still TGI Paris, 3rd CH., 23 Jan.2001) has notably noted:

“That it is a pampilles moccasin made in a single piece of leather with its partner part of a circular perforations leaving on both sides and according to the periphery of a false tray;

- that if it is correct that the aforementioned elements belong to the common fund of the male shoe (Pampilles; realization of the shoe in a single piece of leather, use of a picking line to constitute a tray effect), on the other hand,Their combination applied to a “moccasin” type model is original;that moreover none of the opposite priorities relate to such amocassin or approach it ”.

Confirming this decision on its appreciation of originality (and counterfeiting), the Paris Court of Appeal in a judgment of January 16, 2004, added that:

"The choice of these elements which present no necessary technical character reveals the creative effort the author by the particular aesthetic effect which results from it".

In its definition of the originality of the claimed model, the applicant, requesting the protection of the Unde his models, will therefore have to show editorial skill and will have to find the right dosage.

It will be a question for him to be precise as to the characteristics claimed, adding to those simply of belonging to the genus identified and/or to the elements only technical, without however being of too much at the risk of allowing the defendant to the'Action to multiply the points dedicated to excluding the qualification of counterfeiting.

Conversely, as soon as the anteriority invoked to challenge the originality claimed (and/or laveate) will be part of a gender different from the shoe model requesting protection, its relevance may be criticized.

It is in this sense that the Paris court had spoken, in a judgment of June 20, 2003 (TGI Paris, 3rd Chamber, June 20, 2003, displayed.Berluti, Olga B./ SDD, Bomend’s, Mend’s Distribution), here on a recorded model, holding that:

"Whereas the company Bomend's also denies any original and new character to this model created by Madame Olga B and which was the subject of a deposit at the INPI on May 5, 2000 published on January 26, 2001.

Whereas Mrs. Olga B and the company Berluti claim rights on a model whose characteristics they follow:

- A Richelieu shoe with five eyelets,

- Characterized by the use of a flat leather lace symbolizing a lasso and perforating the leather in a erection,

- This perforation being carried out along the seam of the heel buttress and that of the bottom of the footsteps perpendicular to the longitudinal axis of the shoe and located at the last third before it of it.

Attendu que la société BOMEND'S oppose un modèle de chaussure que Monsieur N, gérant de la sociétéFERREIRA & NOVAIS, a certifié dans l'attestation précitée avoir créé au mois de novembre 1982 sousla référence 1826 ;

that this anteriority is a moccasin which has a flat lace perforating leather not only the sewing of the tail of the heel and the bottom of the kick but also around the kick;that this moccasin is made up, moreover, of pampilles placed on the top of the shoe and a pattern that adorns the upper (i.e above a shoe, from the back to the tip);

that the physiognomy of this model, which is moreover devoid of eyelets with regard to a moccasin, is a point of that of the model invoked by the requests.

Whereas if some of the characteristics claimed by the applicants were known as soon as the "lasso" model is created by Madame Olga B such as the presence of a flatfractor lace according to a regular route the foothill of the shoe and the middle of the upper,The specific model in demand draws its novelty from its own arrangement and the use of the Platperforant lace on a pump whose eyelets are offset from each other;

that it follows that this model is new and takes on a specific character in the sense of book V of the Intellectual Property Code.

Whereas the elements that make up the "Lasso" model reveal, by their choice and their presentation, a creative effort;that this model thus carries the imprint of the personality of its author;that it is therefore also protected by copyright ”.

The model invoked was as follows:

Beyond allowing access to protection, the definition which will be made of originality will allow to circumscribe the perimeter of the protection granted.

In the assessment of counterfeiting, it will then be necessary to extract from comparison the resemblances only dictated by belonging to the same genre, to have the analysis carried, possibly counterfeit, only on original (and/or new)).

If these similarities prevail over differences, counterfeiting may be characterized.

Conversely, in a judgment n ° 12/22322 of February 5, 2014, the Paris Court of Appeal was able to remember that:

"Considering that it follows from the comparative examination to which the Court has delivered, that the shoe of the company B differs from the" golf "model of the company W by the following characteristics, holding the features of the upper, longer 15 mm on the "H" model, to the configuration of the PlateauDont the edges are flat and not raised as they appear on the claimed model, to the organization of the outer edge of the districts and the rear buttress by a double stitching, One of the other of more than one semi-centimeter, a single stitching being found on the model of the company W, in the drawing of the seams on the outside side of the shoe, the "H" model revealing the two curves Slightly wavy, united to each other, evoking the wings of quidenty seagull the shoe of the company W, the absence of connection of the heels and the districts of the claimed model in which the heel and the district connect in a p anointed located by La Trépointe (i.he strip of leather between two leathers sewn together, to strengthen sewing) being added that the heels of the "H" model is not reported to the base of the neighborhoods while, with regard to the "G" model the heel is reportedat the base of the districts by a double bite;

Considering that it is infected with these observations that the differences are preponderant and that the ratings of the claimed model are not reproduced so that the models in this way of a distinct overall impression, the only similarities relating to the nursery to the samekind of golf shoe whose parts of the procedure show that it has appeared United States and that it has been known in France since the late 1920s;

Considering that the counterfeit not being, under these conditions, carried out ".

Julie Curto, founder of the firm Julie Curto Avocats