# C_2011080EN.01000401.xml

| 12.3.2011 | EN | Official Journal of the European Union | C 80/4 |
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12.3.2011

EN

Official Journal of the European Union

C 80/4

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Judgment of the Court (Second Chamber) of 27 January 2011 (reference for a preliminary ruling from the Tribunale di Milano — Italy) — Flos SpA v Semeraro Casa e Famiglia SpA

(Case C-168/09) (1)

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(Industrial and commercial property - Directive 98/71/EC - Legal protection of designs - Article 17 - Obligation concerning the cumulation of design protection with copyright protection - National law precluding copyright protection or rendering it unenforceable for a certain period in the case of designs which entered the public domain before the entry into force of the law - Principle of the protection of legitimate expectations)

2011/C 80/05

Language of the case: Italian

Referring court

Referring court

Tribunale di Milano

Parties to the main proceedings

Parties to the main proceedings

Applicant: Flos SpA

Applicant:

Defendant: Semeraro Casa e Famiglia SpA

Defendant:

Intervener: Assoluce — Associazione nazionale delle Imprese degli Apparecchi di Illuminazione

Intervener:

Re:

Re:

Reference for a preliminary ruling — Tribunale di Milano — Interpretation of Articles 17 and 19 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs — National legislation implementing the directive by introducing copyright protection for designs — Entitlement of a Member State to extend the conditions for the granting of such protection

Operative part of the judgment

Operative part of the judgment

| 1. | Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection. |
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1.

Article 17 of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as precluding legislation of a Member State which excludes from copyright protection in that Member State designs which were protected by a design right registered in or in respect of a Member State and which entered the public domain before the date of entry into force of that legislation, although they meet all the requirements to be eligible for copyright protection.

| 2. | Article 17 of Directive 98/71 must be interpreted as precluding legislation of a Member State which — either for a substantial period of 10 years or completely — excludes from copyright protection designs which, although they meet all the requirements to be eligible for copyright protection, entered the public domain before the date of entry into force of that legislation, that being the case with regard to any third party who has manufactured or marketed products based on such designs in that State — irrespective of the date on which those acts were performed. |
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2.

Article 17 of Directive 98/71 must be interpreted as precluding legislation of a Member State which — either for a substantial period of 10 years or completely — excludes from copyright protection designs which, although they meet all the requirements to be eligible for copyright protection, entered the public domain before the date of entry into force of that legislation, that being the case with regard to any third party who has manufactured or marketed products based on such designs in that State — irrespective of the date on which those acts were performed.

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(1)  OJ C 167, 18.7.2009.

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