Commercial Brochure not Protected by Copyright in Spain

Copyright is not an exact science, it depends on the particular features of the author’s work, we all know that. However, some works are more difficult to judge than others, and the opinion about its legal protection may change from our court to another. 

Here we have an example of that. The Spanish company Euro depot, S.A., part of Kingfisher Group, operating “Brico Depot” stores (DIY and renovate products) brought a lawsuit in 2007 against its competitor Bricolaje Bricoman, S.L. running also DIY stores under the trademark “Bricomart”. The conflict related to one of the commercial catalogues published monthly by Brico Depot, which, in its opinion, was plagiarized by Bricomart because the structure, selection of contents, pictures and texts were very similar in both leaflets, and therefore this behaviour should be considered a copyright violation, and also an unfair competition act. 

The first instance court (Mercantile Court No. 1 of Seville) rejected the complaint, but the Provincial Appeal Court reversed this decision, and considered the catalogue subject to copyright protection. As a consequence, a comparative examination was carried out concluding that the similarities were numerous and not reasonable. According to the Court, the way of presenting the promotions, the prices, the product’s information, the pictures disposition, the dominant colours, the type of paper and the structure of the contents were too close (substantial similarity), being Brico Depot the first arranging the commercial information in this particular manner (creative-original work).

On top of this, the Appeal Court considered the brochure as an essential commercial tool to promote the products and services of a trader in its market, therefore, its blatant copy by Bricomart must be necessarily an imitation to take advantage of the competitor’s advertising strategy (unfair competition).

Despite the efforts made by the Seville Appeal Court to ground its decision, this has been fully overturned by the Spanish Supreme Court last February 2nd, 2017. In the opinion of our High Court, the captioned brochure can’t be considered as “a work” in the terms of our Copyright Act; the elements cited by the judgement don’t qualify it to access to the legal protection of the Authors’ Rights, and therefore, its similarities with the competitor’s brochure are irrelevant. Having said that, no unfair competition can be found either, since the initiative of a trader may be legally imitated when no exclusive right protects it. 

This final conclusion of the Spanish Supreme Court is not surprising in view of its tendency to limit copyright protection to works with some “artistic” value. The problem is to give a definition of “artistic”…