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Margherita Manca
When a design work is copied, the damage can be significant. In this article, we examine the differences between plagiarism and counterfeiting, the protections offered by copyright and industrial property law, the famous Flos v. Semeraro case, and the best legal strategies to protect your creations.
When a designer creates something original, they are shaping a complex creative process: research, experimentation, and intuition converge into a unique result. However, that value is fragile. Creators constantly face a real risk: that someone will take their work without giving them credit or compensation.
This phenomenon can take many forms, but the most obvious are plagiarism and counterfeiting. And yet, exploitation doesn’t always happen in such direct ways. There are more subtle practices, harder to prove and sometimes even legally permissible.
Imagine a designer presenting a project to a company: the idea is officially rejected, but shortly after, the company launches a product with strikingly similar features. A case of “suspicious inspiration”, mimicking the original concept without any recognition for the author.
All these forms of exploitation undermine authorship and violate the right to economic compensation. To protect themselves, creators can rely on specific legal tools:
But knowing these tools isn’t enough: you also need to use them strategically. And this is exactly where the distinction between copyright and industrial property comes into play…
When it comes to the legal protection of design, there are two main tools: copyright and industrial property.
Copyright is a protection system that is activated automatically as soon as an original work is created, without the need for formal registration. It guarantees authorship and the exclusive right to reproduce and commercially exploit the work. However, not all design works are eligible: protection only applies to those that exhibit “creative character and artistic value” (Art. 2, no. 10, Italian Copyright Law).
Unlike copyright, the Italian Industrial Property Code (IPC) allows a design to be officially registered as an industrial design or model, granting exclusive but time-limited protection (up to 25 years). To be valid, the design must be new and possess individual character, meaning it must stand out from existing designs.
The main difference between the two criteria – creative character and individual character – is that the former focuses on expressive freedom and artistic innovation, while the latter concerns the visual distinctiveness a product offers on the market.
A landmark example of how these two forms of protection can coexist and reinforce each other is the Flos v. Semeraro ruling, which set an important precedent regarding the recognition of artistic value in design and the interpretation of applicable intellectual property rights.
And it is precisely the Flos v. Semeraro case that shows us what happens when design meets art.
Ci sono casi che non si limitano a risolvere una disputa, ma ridefiniscono le regole del gioco, o almeno ne chiariscono i contorni. La controversia tra Flos e Semeraro è uno di questi.
There are cases that don’t just settle a dispute, they redefine the rules of the game, or at least clarify their boundaries. The dispute between Flos and Semeraro is one of them.
At the heart of the matter is the iconic “Arco” lamp, designed in 1962 by brothers Pier Giacomo and Achille Castiglioni for the company Flos. This is not just a lighting fixture, it is a global design icon, renowned for its elegant and innovative form, and a symbol of modern interior design.
Years later, the company Semeraro began producing and marketing a lamp strikingly similar to the “Arco”, replicating its shape almost identically. In its defense, Semeraro argued that the industrial design protection for the “Arco” had expired, as provided by Italian law.
Flos, however, did not back down. While acknowledging that industrial protection had ended, it argued that the “Arco” lamp was a work of artistic value, deserving of copyright protection.
The case reached the Court of Justice of the European Union (CJEU) in Case C-168/09, which established a fundamental principle: a design with artistic value may be protected under copyright even after the expiration of its industrial registration.
In 2012, the Milan Court (Ruling No. 9906/2012) confirmed this interpretation, recognizing that the “Arco” lamp had sufficient artistic value to justify independent and long-lasting protection. As a result, Semeraro was prohibited from selling its lamp, as it was deemed an infringement of Flos’ rights over the “Arco”.
This ruling had a significant impact on the legal landscape in both Italy and Europe, establishing that a design work can enjoy simultaneous protection under both copyright law and industrial property law.
But how can designers protect themselves before damage occurs? And what legal strategies should be adopted when plagiarism is already happening?
Waiting to be copied before taking action is a mistake that can come at a high cost. Protecting design must start from the very beginning, through legal tools and contractual strategies that place the designer (or the client) in a position of strength. An unprotected work is, in effect, a vulnerable one. That’s why it is essential to adopt a preventive approach to safeguarding your creativity.
The first step is to document the existence of the design, prove authorship, and, where possible, register it as a design. In addition to creating a legal presumption of validity, registration grants exclusive rights for up to 25 years, preventing others from marketing similar products. If the work has creative character and artistic value, it may also be protected by copyright, supported by evidence of its public recognition such as: publications, awards, industry recognition, or reviews. Tools like digital time stamps are useful for certifying the creation date.
Before sharing a project with a company or potential client, it’s essential to sign a non-disclosure agreement (NDA) to prevent unauthorized use of the project.
Equally important is the assignment or license agreement, which clarifies who owns the rights to the work, for how long, and under what limitations.
If the design is copied or exploited without authorization, swift action is necessary. The first step is to send a formal cease and desist letter to stop the unlawful use. If that’s not enough, legal proceedings can follow, where a judge may:
The world of design is not made of creativity alone – it is also made of rights. Every object born from a designer’s vision is the result of research, experimentation, and personal expression – and for that reason, it deserves protection.
Margherita Manca
