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The cour de Cassation decided a case on February 20, 2007 which confirms a line of cases issued since 2006 concerning the proof of the originality of a creation.
The company, Nocan, is the owner of a model and claims the protection of an old article 511-3 of the CPI against the company, Minitec. In order to destroy the model which is opposed against it, the company, Minitec raises a priority in the form of a patent, which the Court of Appeals judged irrelevant.
 
The Court of Appeal considered that the criteria for the validity of the model [old law] (new and original) were fulfilled. Recognizing the appeal, the Commerce Chamber of the Cour de Cassation, overturned the holding of the Appeals Court with a reminder of the following principal: by deducing the originality of a model solely from its novelty, and without examination of whether it carries the imprint of the personality of its author, the Court of Appeals has not provided a legal basis for its decision.
 
Thus an exclusive creation could be denied all originality if the author does not prove his creative effort. As a practical matter, such a proof is not easy to show, especially in the fields of Fashion and Design, where creations are numerous and the creative freedom, while wide, is nonetheless governed by tendencies.
 
So, while it is relatively easy to show the absence of priority for the individual parts, the author™s creative effort is always more difficult to establish. In fact, creations generally reflect the current tendency and are inspired by previous ones. Judges now require that the author show the personal process whereby he was led to this particular creation in order to benefit from full copyright protection, and this must be shown independently of all objective priority.
 
The author cannot merely prove that he was the first one to have made this creation, but also explain how his creative effort brought something different compared to what already existed. Considering the advantages to be had from copyright protection, this would seem to be the least of requirements. However, one might wonder if for certain creations it would not be better to opt for a filing of a design or a model registration whose validity would be conditioned rather on an objective novelty which is more easily manipulated and proven in the case of a conflict.
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