Reference for a preliminary ruling from the Tribunale di Milano (Italy) lodged on 12 May 2009 - Flos SpA v Semeraro Casa & Famiglia SpA

(Case C-168/09)

Language of the case: Italian

Referring court

Tribunale di Milano

Parties to the main proceedings

Applicant: Flos SpA

Defendant: Semeraro Casa & Famiglia SpA

Questions referred

Must Articles 17 and 19 of Directive 98/71/EC be interpreted as meaning that, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that 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 statutory provisions introducing copyright protection for designs into the domestic legal order 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?

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, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that 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 statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and 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?

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, in implementing a national law of a Member State which has introduced copyright protection for designs into its legal order in accordance with that 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 statutory provisions introducing copyright protection for designs into the domestic legal order entered into force and 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)?

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