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Thursday, 26 March 2009

Design ownership: the AG opines ... but not in English

The IPKat was pacing up and down this morning, impatiently awaiting the Advocate General's Opinion in Case C-32/08 Fundación Española para la Innovación de la Artesanía (FEIA) v Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A., a reference for a preliminary ruling from the Juzgado de lo Mercantil Número Uno, Alicante, Spain, lodged on 28 January 2008 and obviously jumping quite briskly through the administrative hoops in Luxembourg. The questions referred in that reference relate to Article 14(3) of the Community Design Regulation 6/2002 which states

"where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the Community design shall vest in the employer, unless otherwise agreed or specified under national law".
The Alicante court asked the Court of Justice of the European Communities the following questions:
"Must Article 14(3) ... be interpreted as referring only to Community designs developed in the context of an employment relationship where the designer is bound by a contract governed by employment law whose provisions are such that the designer works under the direction and in the employ of another? or

Must the terms 'employee' and 'employer' in Article 14(3) ... be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise? [the IPKat feels that Art.14(3) applies only to a contract where the employer and employee have the status of employer and employee, otherwise it would have not needed to use those terms. But nobody asked him ...]

In the event that the answer to the second question is in the negative, on the ground that the production of designs within an employment relationship and the production of designs within a non-employment relationship constitute different factual situations,

(a) is it necessary to apply the general rule in Article 14(1) ["The right to the Community design shall vest in the designer or his successor in title"] ... and, consequently, must the designs be construed as belonging to the designer, unless the parties stipulate otherwise in the contract? or

(b) must the Community design court rely on national law governing designs in accordance with Article 88(2) ["On all matters not covered by this Regulation, a Community design court shall apply its national law, including its private international law" -- but Art. 14(1) does apply so there should be no need to lose sleep over this, surely?] ...?

In the event that national law is to be relied on, is it possible to apply national law where it places on an equal footing (as Spanish law does) designs produced in the context of an employment relationship (the designs belong to the employer, unless it has been agreed otherwise) and designs produced as a result of a commission (the designs belong to the party who commissioned them, unless it has been agreed otherwise)?

In the event that the answer to the fourth question is in the affirmative, would such a solution (the designs belong to the party who commissioned them, unless it has been agreed otherwise) conflict with the negative answer to the second question?"
The Advocate General in this instance is AG Mengozzi, about whom the Kat shall say nothing, in any language. The Opinion has now been posted in ten official languages of the European Union, but not in English. The French version gives the AG's recommendations to the Court as follows:
"« 1. L’article 14, paragraphe 3, du règlement (CE) n°6/2002 ... doit être interprété en ce sens que le régime qu’il prévoit s’applique aux seuls dessins et modèles réalisés par le salarié dans le cadre d’un rapport de travail subordonné [Trés bien, dit l'IPChat].

2. Les articles 14 et 88 du règlement (CE) n°6/2002 ... doivent être interprétés en ce sens que le titulaire du droit aux dessins et modèles créés dans le cadre d’un rapport contractuel autre qu’un rapport de travail subordonné, tels que les dessins et modèles réalisés par un prestataire pour le compte d’un maître de l’ouvrage, doit être déterminé d’après la volonté expresse des parties et la loi applicable au contrat. La législation d’un État membre qui assimile, pour déterminer le titulaire du droit au dessin ou modèle, les dessins et modèles réalisés par un prestataire pour le compte d’un maître de l’ouvrage aux dessins ou modèles créés par le salarié dans le cadre d’un rapport de travail subordonné, n’est pas contraire à l’article 14, paragraphe 3, dudit règlement" [Per Babel Fish, as tweaked by the Kat who is slightly making it up as he goes along: "the holder of the right to the drawings and models created within the framework of a contractual relationship other than in the course of employment duties, such as the drawings and models carried out by a person receiving benefits for the account of a commissioning party, must be determined in accordance with the expressed intention of the parties and the law applicable to the contract. The legislation of a Member State which assimilates, to determine the holder of the right to the drawing or model, the drawings and models carried out by a person receiving benefits under a commission in respect of the drawings or models created by the employee within the framework of an employment relationship, is not contrary in article 14(3) of the Regulation"].
If the Kat has gone seriously astray, please put him right.
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