Repetto shoes in Paris Court: the copyright 'pas de deux'

This Kat is delighted to expose a copyright case  regarding preferred dancers' brand Repetto which gathers most of the hobbies – besides cat-sitting and blogging- she’s passionate about, i.e.: shoes and dance.

In 2010, after obtaining an authorization for a preliminary seizure (in French law “saisie-contrefaçon” is a feared tool against counterfeiters), REPETTO sued the company KARINE for copyright infringement and unfair competition on the basis of its copyright on shoes named BAYA, GARBO, GITANE, KURT and JUDITH, claiming infringement of two designs named FLORA and INFANTE [at least, the names are original muses Merpels]. KARINE counterclaimed that Repetto’s shoes were basic or classic models distributed on the footwear market for a long time.

On 8 November 2011, the Court of First Instance of Paris rejected all of Repetto’s claims on the following grounds: Repetto did not demonstrate the “printmark” of the author’s personality -necessary to fulfill the originality requirement and obtain copyright protection-of its shoe models. The simple description based on details was not sufficient to evince its copyrights, and their overall design was borrowed from the “common fund of shoes”. “Le fonds commun” is a sub-category of the public domain referring to anything too general to be protected, such as food recipes, legends and tales, jokes and riddles. However if there is a “transformative element”, this element can be protected under this specific form (see  here)

Repetto appealed before the Paris Court of Appeal which affirmed the dismissal of the infringement action, based on the product’s indistinguishability from other shoes, as well as rejected the unfair competition claim.

Repetto submitted thorough descriptions of its shoes models aiming at differentiating it from existing shoes, for example let’s take the GARBO model (A.K.A Oxford shoes or THE walk-all-day heels in blue model here)

“a shoe-shaped stylized drop of about 1 cm, coated over its entire wafer in the same material as the template, and is reported (not integrated) to the sole of any model in back slightly forward;- A rounded tip slightly oval”

Richelieu's boots well-hidden

However, the judges embraced the Defendant’s arguments holding that the GARBO models correspond to a style called Richelieu and existing for decades, usually referred as “laced up booties”, the pad at the top of the sole, falls within a technique widely used by numerous shoe makers.

The Court of Appeal’s holding in its Judgment in September 2013 was as follows “it is clear that the elements which make up the footwear models in question are actually known in their general form, but the Court's assessment must carried out in a comprehensive manner , depending on the overall product appearance by the arrangement of the different elements and not by examining each of them individually , these models clearly fall within existing types of shoes belonging to the common universal fund of footwear as claimed by the defendant ( ... ) if specific combinations thereof, as claimed, are likely to give them its own appearance to distinguish them from other similar models , in the context of a careful examination of the details, no evidence is provided  that these very detailed combinations , association of cutting , heels, finishes or curves , and panels system , flanges or shoe assembly known in the field of shoe, even though they highlight an arbitrary choice, are likely to actually translate into an aesthetic  position imbued with the personality of the author to fall under the provisions of Book I of the Code of intellectual Property . "

It concludes that "it does not appear that the adaptation or variation of existing shoes grants the  models in question any protection invoked under copyright , on the contrary, the originality of these models, in the sense the above provisions do not appear to be sufficiently established”.

When the cat’s away, the mice will play - in French the mice dance
Dancing cats here
Puss in repetto boots Ballet here