At a recent ACID and Briffa event following the disappointing
Trunki decision (PMS International Limited v Magmatic
Limited  UKSC 12), speakers explored IP enforcement in
continental Europe and examined whether laws are more favourable to
Briffa's associates from Germany and Holland explained how
copyright could enable a designer to get far further in continental
courts then they would in an English court thus negating the
reliance on registered or unregistered designs (and all of their
associated limitations). Instead designers can:
Claim that their products are works of art and benefit from
copyright protection for 70 years from the death of the creator;
Benefit from a generous interpretation of what constitutes an
Dr Jan Ludwig, from the German firm BRP Renaud und Partner,
discussed two major cases in his talk. The first, the
"Birthday train" case, opened the floodgates for
designers to claim copyright in otherwise unprotected work. The
second, regarding the "Wagenfeld lamp", showed that
parties from outside Germany could be subject to the German
interpretation of copyright, providing that their goods were
targeted at the German market.
The Birthday Train Case
The design below (the "Birthday Train") was the
subject of a major change in German copyright law.of around
Ł900. In order to claim a larger share of the profits the
designer set about convincing the German courts that the Birthday
Train was, in fact, a work of art.
The designer referred to a legislative change allowing works of
applied art (which may already have design right protection) to
obtain protection under copyright law. For nearly five decades the
case law of the German court held that only outstanding
works in the field of applied art would enjoy copyright
protection which meant that only 1% of all furniture designs were
accepted as work of art...
However, the German court reversed this position in the Birthday
Train case and it is now no longer necessary for works of applied
art to show "outstanding character" to
rely on copyright protection.
The Wagenfeld lamp case
This transition in copyright protection for designs does not
only have a domestic effect in Germany. Foreign companies (e.g. UK
companies), which target the German market, must also obey the new
copyright framework. In the "Wagenfeld lamp" case the
court affirmed a copyright infringement on the basis that the
German market had been targeted. The Wagenfeld lamp, was created in
1924 and was acknowledged by the court to be a protected
work of art.
The claimants issued proceedings against an Italian resident who
was selling imitations of the lamps in Italy. German customers
could acquire the lamps by collecting the goods in Italy or
contracting a carrier for transportation to Germany. However, the
Italian retailer was using a German-language website and German
print media advertising, suggesting that the business model was
aimed at bypassing German copyrights. On that basis, the court said
that advertising could be prohibited by German courts.
Designs which are not protected by copyright in the UK (due to
the narrow interpretation of artistic works) may still enjoy
protection in Germany. Following the Birthday Train case the
thresholds for protection in Germany have been greatly lowered and
the fair remuneration scheme is in force to protect designers and
other creators. This means that UK designers can target
infringements in Germany and are entitled to make use of the
"fair remuneration" scheme governed by German law. This
however is based on a pre-Brexit status and it is currently unclear
whether these advantages will be available in a post-Brexit world.
It is clear however that the UK approach needs to change in order
to improve protection for designers, this might happen with the
UK's own Birthday Train style judgment (although, after Trunki,
this seems a long way off) or maybe Brexit is just the catalyst we
need to change the approach? This was certainly the hope of the
speakers and attendees alike, and, in anticipation of turbulent
waves of political change ahead, we all decided to get in some
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The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
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