Bagging copyright… and then losing it: “Le Pliage” and the Belgian courts

In the world of luxury goods, the protection of intellectual property rights is traditionally high on the agenda. A product which has been subject to a number of IP proceedings over the years is Longchamp’s “Le Pliage” handbag. On 17 February 2017, the Belgian Supreme Court added its voice to the debate, ruling that the Ghent Court of Appeal, which had refused the “Le Pliage” design copyright protection in its judgment dated 20 October 2014, did not err in law.

Philippe Cassegrain, son of Jean, the founder of French luxury leather goods company Longchamp, created the “Le Pliage” handbag in the early ‘90s. “Le Pliage” means “folding” in French. This aligns with Mr Cassegrain’s goal, since he wanted to create a practical yet stylish fold-up bag. According to the website of Longchamp, the design of the “Le Pliage” bag is inspired by the Japanese art of origami. It is available in many different shapes and colours. Over the last few decades, it has become a classic around the world. Its popularity has induced many copycats, with several instances of IP litigation as a result. The question therefore arises whether this design enjoys copyright protection.

In accordance with Article XI.165, §1 of the Belgian Code on Economic Law (CEL), copyright protection is automatically granted to so-called literary or artistic works. There are two conditions for copyright protection: the work (i) must be expressed in a particular form (the so-called “idea-expression dichotomy”, according to which mere ideas are not protectable by copyright) and (ii) must satisfy the condition of originality. As is clear from the case law of the Court of Justice of the European Union (CJEU), this implies that the work must be the intellectual creation of the author (Case C-5/08, Infopaq), that said author was able to express his or her creative abilities in the work by making free and creative choices (Case C-145/10, Painer). These conditions also apply to fashion items.

Over the years, there have been a large number of decisions in the Belgian IP landscape regarding the question of copyright in the fashion industry, with several cases on dresses (1), umbrellas (2), shoes (3) and children’s clothing (4). In this news item, we will focus on case law regarding the question of copyright on handbags.(5)

In 1999, the Brussels Court of Appeal granted copyright protection to the “Basic” collection by Kipling.(6) It ruled that the combination of several unoriginal elements may be original if such combination demonstrates the creator’s intellectual effort. This conclusion is not affected by the fact that, in the past, other designers have chosen similar elements, but combined them in a different way. On the facts, it was decided that Kipling’s design was original, as a result of the combination of the following (banal) features: the systematic use of coarse stitches in a colour contrasting with the single base colour of the bag; large metallic zippers with a black plastic disc with “Kipling” on it; and a centrally positioned and quite large black logo “Kipling”. We also refer to the “Mathilde” debacle, which led to a lengthy judgment of the Brussels Court of Appeal in 2012.(7) In this judgment as well, the copyright protection of the handbag design was accepted. The Court ruled that by choosing, arranging and combining a number of different elements in an original way, the author expressed his creative mind, thus ultimately creating a work protected by copyright.

However, by far the most litigated-on design in the handbag sector is the “Le Pliage” handbag, commercialised by Longchamp. The Brussels Court of Appeal accepted in 2001 and 2004 that this design was protected by copyright.(8) In 2006, this point of view was confirmed by the Liège Court of Appeal. Again, the original combination of several seemingly banal characteristics (design of the handle, foldability, etc.) was found sufficient for copyright protection. In the words of the Court, this combination provides the design with a unique and clearly artistic character. Once again an infringement was found and damages were awarded.

A few years after this judgment, Longchamp again instigated infringement proceedings against a copycat of the “Le Pliage” design, this time without success. In the course of the proceedings, counsel for Longchamp expressly stated that the subject of its claims were the contours of the handbag and dismissed the feature of foldability of the handbags as irrelevant. Longchamp argued that the originality of its design lied in the combination of the following features: (i) a quadrangular base structure, the upper corners of which are pointed; (ii) lip-shaped protrusions at the upper corners, extending beyond the upper line and reinforcing the angular nature of the corners; (iii) two handles with ends in the shape of rounded spearheads and of with lines that have a specific relationship with the other lines of the shape of the design; and (iv) a slightly rounded flap, folding between the handles over the zipper, also in a specific relationship with the other lines of the shape of the design.

By judgment of 6 June 2013, the Commercial Court of Ghent rejected Longchamp’s claims and, furthermore, ruled that Longchamp’s claims were vexatious. The Court therefore ordered Longchamp to pay the defendants a fee of 2.000 EUR. Longchamp appealed, fully expecting a reversal of the lower court’s judgment. The judgment of the Court of Appeal of Ghent, handed down on 20 October 2014, therefore came as an unpleasant surprise. While recognising that this design led to an unmistakable and lingering fashion trend, the Court of Appeal held that such a trend is not deserving of copyright protection. In rejecting Longchamp’s claims, the Court pointed out that granting a monopoly on a certain style or trend would cripple its ability to develop further. Additionally, the Court mentioned the need to respect the principle of freedom of expression, enshrined in Article 10 ECHR.

The judgment of the Court of Appeal of Ghent was met with mixed reactions. Legal doctrine criticised the Court’s point of view. While certain style elements may be banal and unprotected, several legal authors argued that the specific expression of such a style in an original way in any case deserves copyright protection. Another point of critique was that the Court expressly denounced the possibility of dilution of copyright (i.e. the possibility of its disappearance over time), but implicitly accepted it anyway. These authors argued that, after holding that the “Le Pliage” design led to a fashion trend, the Court inevitably should have reached a finding of initial originality. By refusing copyright protection in the end, the Court of Appeal of Ghent was said to implicitly have accepted the possibility of dilution of copyright. 

The negative decision of the Court of Appeal of Ghent did not deter Longchamp from taking action against other copycats. In parallel with the proceedings before the courts of Ghent, Longchamp filed proceedings against other alleged infringers, this time again before the courts of Brussels. On 24 September 2014, Longchamp filed a unilateral request to obtain interlocutory measures. A few days later, Longchamp also requested descriptive measures (by way of a so-called “saisie-contrefaçon”), in order to find out more about the scope of the infringement. Both requests were ultimately granted by the Brussels Court of Appeal on 5 December 2014, forcing the copycats to (provisionally) cease all commercialisation of the litigious handbags. The alleged infringers filed a third-party opposition before the Brussels Court of Appeal, but their claims were rejected in the Court’s judgment of 19 June 2015. The Court ruled that Longchamp could claim prima facie copyright protection on the “Le Pliage” design and that this copyright had prima facie been infringed. Interestingly, the Brussels Court of Appeal referred to the then very recent judgment of its counterpart in Ghent, holding that the fact that this design had started a fashion trend did not exclude its protection by copyright.

Most recently, the Belgian Supreme Court considered the findings of the Court of Appeal of Ghent in a decision of 17 February 2017 (C.15.0144.N, www.cass.be). In rejecting Longchamp’s arguments in their entirety, the Supreme Court held as follows: