To attract you into their shops, Moroccans will tell you “Come in… For the pleasure of the eyes”.
For what is better than an attractive point of sale to entice a customer to get in?
This is why brands – and franchises in particular – tend to capitalize on their interior design, which can become a real visual communication tool.
Can these sometimes-iconic arrangements be protected by copyright?
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In a recent decision dated April 5th, 2018, the Douai Court of Appeal responded positively to this question.
In this case, the SHAMPOO hair salon franchisor claimed that a former franchisee did not modify the interior layout of his salon – which copied and used the characteristics of a network point of sale – even though they had terminated their franchise agreement.
The franchisor demanded that the use of their layout be qualified as an act of counterfeiting. To do so, such layout must first be considered as a work of the mind in accordance with Article L. 112-2 of the Intellectual Property Code and, more precisely, as an architectural work.
It should be recalled that a work of the mind must be original and bear the imprint of its author’s personality, it being understood that these criteria must be justified by the Court.
Therefore, the Court carried out a meticulous detailed analysis of the layout of the franchisor’s hair salon (furniture layout, shelves positioning, spacing, materials, colours, framed photographs, etc.) and concluded that “the elements taken as a whole reveal a creative work, an aesthetic bias, imbued with the author’s personality, which is not dictated by functional constraints and gives the hair salon its own appearance, different from that of competing brand salons, and therefore protectable as a work of the mind“.
A first yet unsatisfying victory, since the Court did not recognize the act of counterfeiting. Why? Firstly, because the evidence provided by the plaintiff were photographs taken from outside the salon, “through a window with reflective effects”, which seems insufficient to analyse the interior layout. Secondly, because the Court identified several essential differences, such as the removal of the characteristic red colour, the installation of green armchairs, and the substitution of the “Shampoo” logo with the “50 Nuances” logo, all of which are not comparable to the layout of the SHAMPOO salons.
Conclusion: “Whoever wants to do great things must think deeply about the details” – Paul Valéry.
In a nutshell:
- The more precise and concrete the design of a point of sale is (regarding its shapes, spaces, lights, colours, furniture, decoration, etc.), the more obvious the bias and the imprint of the designer’s personality will be, thus opening the possibility of copyright protection.
- In any case, it is essential to obtain the rights of a layout before using or reproducing its elements. This may require a contract for the transfer or the licensing of economic rights.
- In the case of an infringement lawsuit, the evidence provided should not be overlooked. Here, the franchisor should have seized the counterfeited goods and submitted a detailed description presenting pictures of the interior salon’s layout to the Court.
- In parallel, an action for unfair competition would have been possible too.
Joyce-Eva BEAUREPAIRE
Intellectual Property Lawyer