Keeping warm in the heat of the FEIA ...

Looking through the list of forthcoming events on the Curia website, the IPKat spotted an exciting hearing on Thursday 29 January in Case C-32/08, Fundación Española para la Innovación de la Artesanía (FEIA) v Cul de Sac Espacio Creativo, S.L. and Acierta Product & Position, S.A., a reference for a preliminary ruling from the Juzgado de lo Mercantil Número Uno, Alicante, (Spain), lodged almost exactly one year earlier on 28 January 2008.

Right: members of the Court of Justice consider the Opinion of the Advocate General and agree that it sounds much more impressive in Maltese than in boring old English

The questions turn on the interpretation of Article 14(3) of the Community Design Registration, which the IPKat in his innocence had never thought, even for a moment, might give rise to concern of any description, let alone a reference to the European Union's top tribunal. Article 14 reads:

"Right to the Community design

1. The right to the Community design shall vest in the designer or his successor in title.

2. If two or more persons have jointly developed a design, the right to the Community design shall vest in them jointly.

3. However, where a design is developed by an employee in the execution of his duties or following the instructions given by his employer, the right to the Community design shall vest in the employer, unless otherwise agreed or specified under national law."

From this apparently simple set of precepts the Alicante judges have woven the following fabric, asking:

"Must Article 14(3) of [Council Regulation ... 6/2002 of 12 December 2001 on Community designs] be interpreted as referring only to Community designs developed in the context of an employment relationship where the designer is bound by a contract governed by employment law whose provisions are such that the designer works under the direction and in the employ of another? or

Must the terms 'employee' and 'employer' in Article 14(3) ... be interpreted broadly so as to include situations other than employment relationships, such as a relationship where, in accordance with a civil/commercial contract (and therefore one which does not provide that an individual habitually works under the direction and in the employ of another), an individual (designer) undertakes to execute a design for another individual for a settled price and, as a result, it is understood that the design belongs to the person who commissioned it, unless the contract stipulates otherwise?

In the event that the answer to the second question is in the negative, on the ground that the production of designs within an employment relationship and the production of designs within a non-employment relationship constitute different factual situations,

(a) is it necessary to apply the general rule in Article 14(1) ... and, consequently, must the designs be construed as belonging to the designer, unless the parties stipulate otherwise in the contract? or

(b) must the Community design court rely on national law governing designs in accordance with Article 88(2) ... ["If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in any Member State in which he has an establishment".]

In the event that national law is to be relied on, is it possible to apply national law where it places on an equal footing (as Spanish law does) designs produced in the context of an employment relationship (the designs belong to the employer, unless it has been agreed otherwise) and designs produced as a result of a commission (the designs belong to the party who commissioned them, unless it has been agreed otherwise)?

In the event that the answer to the fourth question is in the affirmative, would such a solution (the designs belong to the party who commissioned them, unless it has been agreed otherwise) conflict with the negative answer to the second question?"

The IPKat is just itching to see what happens. His hunch is that the Advocate General will produce a massive Opinion, weighed down with state-of-the-art European and national scholarship on design law, employment law and private international law, which the Kats won't be able to read because (mercifully) it won't be made available in English, following which the Court of Justice does one of its famous "it's entirely up to the national court to decide on the facts, having regard to the specific circumstances" rulings, excising all the difficulties, re-drafting the questions to fit the message and cutting through the whole issue in about 36 tidy little paragraphs.

Merpel feels rather cheated. For ages she has been awaiting a reference on Europe's bizarrely cobbled-together compromise on design law, but she had always assumed that it would be on the scope of protection.