Vitra v High Tech: what the ECJ must rule on

The Curia website has now posted information about Case C-219/09 Vitra Patente AG v High Tech Srl, a reference for a preliminary ruling from the Tribunale di Milano, Italy, which was lodged on 16 June 2009. The questions in this reference are as follows:

"(1) Must Articles 17 and 19 of Directive 98/71/EC [on the legal protection of designs] be interpreted as meaning that -- in implementing a national law of a Member State adjusting the domestic legal order to the abovementioned Directive -- the discretion accorded to such a Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection in the case of designs which -- albeit meeting the requirements for protection laid down in copyright law -- fell to be regarded as having entered into the public domain before the date on which the national implementing legislation entered into force, in so far as they had never been registered as designs or in so far as the relevant registration had already expired by that date?

(2) If the answer to the first question is in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection where a third party -- without authorisation from the holder of the copyright on such designs -- has already produced and marketed in that State products based on such designs which were in the public domain before the date on which the national implementing legislation entered into force?

(3) If the answers to the first and second questions are in the negative, must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that the discretion accorded to the Member State to establish independently the extent to which, and the conditions under which, such protection is conferred may include discretion to preclude such protection where a third party -- without authorisation from the holder of the copyright on such designs -- has already produced and marketed products based on such designs in that State, where protection is precluded for a substantial period (a period of 10 years)?"

Notes on the background to this dispute, which involves the design of the Panton chair, can be found here.