Italy has always led the field in creating new designs, especially in fashion, interior design and the like. This is why protecting designs, which can often also be covered by copyright, is of special interest to Italian industry.

After several changes to the laws regulating the rights in this area, on May 13th, 2011 Decree Law no. 70/2011 (“Development Decree”) made a further clarification to article 239 of the Intellectual Property Code which links the design right to the copyright.

Specifically, the same level of protection that was accorded to designs under article 2, no. 10) of the copyright law now also covers works of industrial design which entered the public domain before April 19th, 2001 due to the expiry of their design registration.

However, third parties who have made or sold, in the 12 months prior to April 19th, 2001, products according to such designs do not violate copyright if those products were made or sold before April 19th, 2001 or were made in the five years after that date. This exclusion is limited to manufactures or sales kept within the limits (including quantitative limits) of prior use.

Thus, the current formulation implies that copyright protection applies only to designs which registration and which became of public domain before April 19th, 2001, and not to a design that was not filed notwithstaning its creative character and artistic value. Therefore, it seems thtat imitation of such de fact designs might to be considered lawful.

The “Development Decree” has yet to be converted to law, and it is therefore still possible that it will be modified in Parliament following the objections to this latest change which have already been raised by several interested circles.

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