22 June 2020
The CJEU has ruled that the shape of technical designs may be eligible for copyright protection, even if the shape is partially dictated by technical function.
This ruling, issued on 11 June 2020, came as a result of a referral from Belgium in a dispute between Brompton, makers of the well-known Brompton foldable bike, and Korean company Get2Get, which manufactures a similar foldable bike. The Brompton bike had previously enjoyed patent protection but, since this has now expired, Brompton brought a case against Get2Get for infringement of their copyright in the shape of their folding bicycle. Get2Get argued that they were simply copying the technical aspect of the foldability of the bike and this inevitably led to a similarity in shape. Therefore, they reasoned, this was not protected by copyright as it was dictated by technical function. While the CJEU agreed that copyright protection does not apply when the shape of a design is dictated solely by technical considerations, it has ruled that copyright may still subsist in a design where the shape is only partially dictated by function. The only criterion is that the design fulfills the originality standard for copyright protection – namely that it is the author’s own intellectual creation resulting from free and creative choices.
Copyright protection in the UK and Europe arises automatically and provides a much longer term of protection than that conferred by patents and designs. Even though an article has previously enjoyed another form of IP protection such as a patent, this decision highlights that it is not precluded from continuing to enjoy copyright protection beyond expiry of this alternative right. Therefore, this ruling emphasises how copyright may form an additional tool in enforcing rights against potential copycat-infringers.
For more information on the protection and registration of designs, visit our webpage here, or to view our registered design FAQs page, please click here.
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