Longchamp's Handbag Copyright Saga - Is the conclusion unfolding?

Le Pliage, the famous foldable handbag created by Longchamp, was first designed in 1993 and has sincebeen reproduced in many different materials, sizes and hues. Its design has also attracted copycats.

In the February 2015 edition of thispublication, we discussed the disputebetween Longchamp (Jean CassegrainS.A.S.) and a Belgian reseller ofleather handbags. In October 2014,the Court of Appeal of Ghent deniedcopyright protection to Le Pliage,determining that the design was anew trend in the market and, as such,could not be copyright protected.The court found that such protectionwould create a monopoly on a trendand could constitute a restrictionon the freedom of expression ofother designers. In denying copyrightprotection to Le Pliage, the Court ofAppeal controversially diverged fromearlier case law in Belgium and otherjurisdictions.

In June 2015, however, the Court ofAppeal of Brussels reached a differentconclusion in another copyright-relatedcase involving Le Pliage. It held that thefact that Le Pliage had started a styleor trend was irrelevant and that evenwhen all of the elements of a handbagare banal, because they follow a styleor trend, the particular combinationof elements may still be found to beoriginal. Moreover, even if a handbagfollows a style or trend, it is possible toacknowledge specific original, and thuscopyright-protectable, elements.

These two judgments created considerable legal uncertaintyregarding the possible copyright protection of Le Pliage.

Court of Cassation

Unsurprisingly, Longchamp appealed to the Belgian Court ofCassation (Belgium’s Supreme Court) against the decision ofthe Court of Appeal of Ghent. However, in its judgment ofFebruary 2017 the Court of Cassation upheld the decisionof the lower court, underscoring that works can only benefitfrom copyright protection if they are expressed in a specificand concrete form. The Court of Cassation found that thecombination of the elements of Le Pliage is a style or trendwhich does not constitute a specific and concrete form.Therefore, the handbag design cannot, in itself, benefit fromcopyright protection. The Court of Appeal of Ghent thereforerightfully did not even have to consider whether the conditionof originality was met. This judgment was heavily criticized bylegal commentators.

Notably, despite these unfavorable rulings, Longchampcontinued to sue companies selling handbags that it believedinfringed its copyrights.

A militant handbag

Clearly not discouraged by these unsatisfactory judgments, onApril 26, 2017, Longchamp filed suit against Leonidas, a leadingBelgian chocolate maker, regarding bags Leonidas was offeringas part of a marketing campaign. In its defense, Leonidas reliedon the decision of the Court of Appeal of Ghent, arguing thatthis judgment had the authority of res judicata and an ergaomnes effect and thus bound other courts in other cases. Thisargument was inspired by Belgian patent law, which states thatpatent invalidity decisions constitute a final decision in respectof all parties, subject to opposition by third parties.

The Commercial Court rejected this argument, saying thatit had no legal authority that the res judicata effect of patentinvalidity decisions is an exception to the general principleof the relative authority of a court’s decision and cannot beextended to decisions rejecting copyright protection. Thecourt rebuked the reasoning and conclusion set out in thejudgment of the Court of Appeal of Ghent, referring tothe criticisms of that decision and the contrasting June 2017decision of the Brussels Court of Appeal. The CommercialCourt ordered Leonidas to refrain from offering its bags tothe public, with fines payable if the company did not comply.Leonidas has appealed this decision, and a judgment from theBrussels Court of Appeal is expected soon.

Finally, in another matter before the Commercial Courtof Antwerp in 2017, Longchamp again successfully sued awholesaler and retailer of similar handbags. The defendantswere ordered to pay an ex aequo et bono amount of €25 indamages per each infringing handbag that had been sold. Oddly,no references were made to either the judgment of the GhentCourt of Appeal or the judgment of the Court of Cassation.

To be continued

Although the only ruling of the Court of Cassation so far hasnot been in Longchamp’s favor and the final battle has not yetbeen fought, it looks like the tide is turning. Belgian judges,in line with other European judges, do not appear to attachtoo much weight to the Court of Cassation’s ruling. However,it remains to be seen how the saga will further evolve andwhether the envelope will continue to unfold for Longchamp.