Famous designer furniture or lighting can seem timeless, but the underlying designs are subject to copyright in Germany for 70 years after the author or creator dies. Exclusive licensees, which can be famous manufacturers of quality furniture in their own right, have a reason to sell their goods at notably high prices—they have to pay a licence until the copyright expires.
The high price of the licensed furniture, and the reluctance of customers to spend so much money on it, is one of the main reasons that in the past few decades some manufacturers of furniture have specialised in making and distributing copied Bauhaus furniture across Europe, for example.
Until very recently one typical model of distribution was to offer this unauthorised furniture on German-language websites directed to German customers. There would be express advice to customers that the furniture had to be bought directly in another European country, for example Italy, and then transported to Germany at the buyer’s cost. German customers would be told that a transportation service had been secured and that payment could be made to the transporter.
"A case against a well-known Italian manufacturer of design furniture including several types of Bauhaus furniture had been pending at the District Court and Court of Appeal in Hamburg."
These manufacturers evidently sought to circumvent the jurisdiction of German courts and were largely active in countries such as Italy where Bauhaus furniture and other products do not enjoy copyright protection.
The CJEU’s position
In recent years, German courts have sought to mitigate this situation, and have repeatedly ruled that such practices constitute copyright infringement. However, it was not until May 2015 that the Court of Justice of the European Union (CJEU) ruled that article 4, paragraph 1 of Directive 2001/29/EC on harmonising certain aspects of copyright law meant that the exclusive licensee was entitled to seek injunctive relief against direct offers for, or advertising about, copyrighted products. This was even if it could not be proved that these products had actually been delivered to customers or bought (CJEU case C-516/13).
A case against a well-known Italian manufacturer of design furniture including several types of Bauhaus furniture had been pending at the District Court and Court of Appeal in Hamburg before coming to Germany’s highest court in civil matters, the Federal Court of Justice. This court then submitted a question to the CJEU and, when it had made its ruling, the case was remanded back to the Federal Court of Justice.
In November 2015, the Federal Court of Justice finally decided the case. It held that the offers and advertising in this case were “direct” offers “targeted” at copies of copyrighted pieces of furniture. So in the court’s opinion, these offers and advertising directly infringed the licensees’ exclusive rights to the copyright. In two parallel cases concerning the same question of law, the court issued corresponding decisions on the same day. One case concerned a copy of the famous Wagenfeld lamp of the Bauhaus era; the other dealt with offers of counterfeit DVDs on the internet.
We hope that the described model of distributing copies of products has now come to an end.
Jens Künzel is a partner at Krieger Mes & Graf v. der Groeben. He can be contacted at: firstname.lastname@example.org
Jens Künzel, Krieger Mes & Graf v. der Groeben, copyright, licensing, CJEU, Bauhaus,