AG’s preliminary findings point to no Brompton bike infringement
The folding bicycle marketed by South Korean biker maker Get2Get does not infringe the copyright of UK bike maker Brompton’s designs, according to an opinion from the Court of Justice of the European Union’s ( CJEU) advocate general Campos Sánchez-Bordona.
In an opinion delivered today, February 6, Bordona stated that articles 2 to 5 of Directive 2001/29/EC, on the harmonisation of certain aspects of copyright and related rights in the information society, “do not provide for copyright protection of creations of products with an industrial application whose shape is exclusively dictated by their technical function”.
The opinion comes following a referral to the CJEU from the Companies Court, Liège, Belgium (Tribunal de l’entreprise de Liège).
The questions referred to several issues. The Belgian court asked whether in order to assess whether a shape is necessary to achieve a technical result, should account be made of the following criteria: the existence of other possible shapes which allow the same technical result to be achieved; the effectiveness of the shape in achieving that result; the intention of the alleged infringer to achieve that result; and the existence of an earlier, now expired, patent on the process for achieving the technical result sought.
Sánchez-Bordona said that in order to determine whether the specific features of the shape of a product are exclusively dictated by its technical function, the competent court must “take into account all the relevant objective factors in each case, including the existence of an earlier patent or design right in the same product, the effectiveness of the shape in achieving the technical result, and the intention to achieve that result".
Where the technical function is the only factor which determines the appearance of the product, he continued, the fact that other alternative shapes exist is not relevant.
In the original Belgian filing in December 2018, Brompton Bicycle had asked the court to rule that Chedech bicycles (manufactured by Get2Get), irrespective of the distinctive signs affixed to the folding bicycles in question, “infringe Brompton’s copyright and Mr SI’s [the other named applicant] non pecuniary rights in the Brompton bicycle”.
They also asked that the court order the defendant to “cease all activities which infringe the applicants’ copyright, including but not limited to the production, use, sale or offer for sale, distribution, import, export, promotion or exhibition of the Chedech bicycles at issue and any folding bicycle which exhibits the following original features of the Brompton bicycle”.
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