Will Longchamp's Le Pliage handbag now be protected or not?

In recent years, Belgian judges have frequently had to rule on the question of whether or not Longchamp's famous Le Pliage handbag is protected by copyright. After all, copyright infringement only occurs when an original/original work is copied.

The courts of appeal in Brussels and Liège ruled in 2004 and 2006 that the handbag does have copyright protection. However, the court of appeal in Ghent took a different view and ruled in a judgment dated October 20, 2014 of not. This ruling was upheld - on a legal technicality - by the Supreme Court in a judgment dated February 17, 2017.

It was therefore to be awaited what would be the next step in this saga. Would this discord be confirmed or would the courts of appeal in Brussels and Liège change their jurisdiction?

This opportunity was given to the Brussels Court of Appeal in proceedings between Longchamp and Leonidas (which had distributed "counterfeit" Le Pliage handbags to its clientele when purchasing at least 28 euros worth of chocolate). In a judgment dated July 26, 2018 the Brussels Court of Appeals confirmed that the Le Pliage handbag was indeed an original work and thus protected by copyright (a ruling that was partly to be expected now that the Brussels Court of Appeals in a judgment dated June 19, 2015 - albeit in an attachment for counterfeiting proceeding - had criticized the judgment of the Ghent Court of Appeals).

A little before that, the Commercial Court of Antwerp had also issued in a judgment dated November 6, 2017 protection granted.

In practice, therefore, this known that a handbag distributed in the province of Liege, for example, is counterfeit, and a handbag distributed in the province of West Flanders is perfectly legal.

Such case law is no exception. It is regularly observed that courts of appeal have a different view on the copyright protection of the same work, or also that courts in different member states contradict themselves on this issue. The reason actually lies in the fact that the interpretation of the originality criterion is a subjective matter: what is original for one (judge) is not necessarily so for another (judge). Therefore, it is not always easy for both a rightholder and an infringer to predict how a particular case will be decided.

However, there is a trend in case law whereby the Ghent Court of Appeal sets the threshold of originality very high, and has often given surprising judgments denying protection to a right holder. Consequently, the Ghent Court of Appeal is often referred to as the court where an infringer has the greatest chance of success.

The question which court of appeal has jurisdiction is determined by the residence of the infringer but also by the place where the infringements are committed. An infringer who lives in Bruges and distributes counterfeiting only in East and West Flanders will therefore only have to answer - in degree of appeal - before the court of appeal in Ghent. If he also distributes this counterfeiting in the province of Antwerp or Flemish Brabant, he can also do so before the Antwerp or Brussels Court of Appeal. If counterfeiting is sold online, then the infringer is deemed to address all residents of Belgium and the infringement act can be located in any province.

A lawyer therefore has the important task of knowing the state of jurisprudence and, above all, being aware of the differences in the case law of the Belgian courts.