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Designs and a matter of discretion: will Cassina go with the Flos?

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

It's definitely the season for referring intellectual property questions to the Court of Justice of the European Union for preliminary rulings. Only yesterday the IPKat reported on Case C-207/10 Paranova Danmark A/S, Paranova Pack A/S v Merck Sharp & Dohme Corp. (formerly Merck & Co. Inc.), Merck Sharp & Dohme B.V. and Merck Sharp & Dohme, and today it's the turn of Case C-198/10 Cassina SpA v Alivar Srl and Galliani Host Arredamenti Srl, sent to Luxembourg from the Corte d'appello di Milano, Italy.

Right: like the litigants in this latest reference, the IPKat has a substantial interest in furniture design

Cassina SpA makes some striking furniture, it seems, and the question [that's what Curia calls it. Merpel thinks there's more than one of them] referred for a ruling is this:

"Must Articles 17 and 19 of Directive 98/71 [on the legal protection of designs] be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the design copyright holder- had already produced and marketed in that State products based on the designs in question - those designs being in the public domain - before the date on which the national implementing legislation entered into force?

Must Articles 17 and 19 of Directive 98/71 be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, protection is conferred may include discretion to preclude such protection where a third party - without authorisation from the design copyright holder - has already produced and marketed in that State products based on the designs in question, where protection is precluded within the limits of prior use?"

The IPKat understands from a circular from the UK's Intellectual Property Office that this case has been stayed pending judgment in Case C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA, which the Kat has helpfully if indigestibly noted here. If this is so, is it worth referring it now at all?

Merpal adds: as usual, if you want to make any comments on it which might inspire the UK government to intervene [assuming it can still afford to do so], please email the IPO here, presumably some time in the next few days.

Cassina furniture here
Cassina cat here
Cassata here
Cassandra here
Cassava here

Full post as published by IPKat on June 22, 2010 (boomark / email).