Brompton: ‘Original’, functional shapes can be copyrighted, says CJEU
Functional shapes are eligible for copyright protection as long as they are an original, creative work, the Court of Justice of the European Union (CJEU) has ruled.
The ruling, issued today, June 11, is the latest development in a copyright dispute between UK fold-up bicycle maker Brompton and South Korean rival Get2Get.
Brompton sued Get2Get in Belgium for copyright infringement over the South Korean company’s fold-up Chedech bike.
But according to Get2Get, the design of the Chedech bicycle is dictated by the “technical solution sought, which is to ensure that the bicycle can fold into three different positions”. This function should only be protectable under patent law, rather than copyright, Get2Get argues.
The Liège Companies Court referred the case to the CJEU, seeking clarity on whether shapes “necessary to achieve a technical result” can be protected by copyright, as well as other criteria that should be taken into account, like whether other shapes could achieve the same result, and the intention of the alleged infringer.
In today’s decision, the CJEU ruled that copyright protection can apply to technically necessary shapes to the extent that they constitute an “original work resulting from intellectual creation”.
An ‘original work’, in this sense, means that the “author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality,” the decision said.
Whether Brompton’s fold-up bike design meets these criteria is for the Liège court to decide, the CJEU decision stated.
“This is in many ways a new era of copyright protection and opportunities for rights holders in Europe," said Arthur Artinian, partner at K&L Gates.
“The 'no room for creative freedom' test and factors identified by the court suggest that minor creative choices, even choices relating to surface decoration or non-structural parts of a product which contribute to its visual appearance, will be sufficient for a finding of copyright protection," Artinian explained.
The original, creative element is crucial, the CJEU decision said, as: “Where the shape of the product is solely dictated by its technical function, that product cannot be covered by copyright protection.”
The case will now be sent back to the Liège Companies Court, which will have to decide whether Brompton’s fold-up bike design is protectable by copyright.
WIPR has contacted Brompton and Get2Get for comment in response to the CJEU’s decision.
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