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The Brompton Case: when function is something more
Copyright can protect a product’s shape which is, at least in part, necessary to obtain a technical result, provided it is original, European Court has ruled. This is the last interpretation provided by the European Court of Justice in theme of Copyright protection through a-noteworthy-decision issued on June 11 (Case C-833/18).
The source of discord is the famous Brompton bicycle which can be folded to be carried away after use. The contest involved thus the Brompton Bicycle Ltd, which sued Get2Get claiming the Copyright Infringement on their signature product. The bike has been protected for 20 years from October 1979 by an European Patent (EP0026800).
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Brompton Bicycle Source: https://bikes.brompton.com | Source: Patent EP0026800 |
Then, after its expiration, a Belgian company (Get2Get) started selling a similar bike, so called Chedech, which, according to Brompton, was nothing but an evident copyright infringement.
Chedech / Get2Get bicycle Source: Case C‑833/18
Nevertheless, Get2Get argued that the appearance of the bike is dictated by the technical function which meant that the patent protection would have been the only IP right to be claimed.
However, despite the argument of the defendant the Court clarified that only if the shape is solely dictated by function, copyright cannot protect it. This said, the copyright protection applies to a product whose shape is, at least in part, necessary to obtain a technical result.
What does it really mean in the practice?
The key of lecture of the whole case is “at least in part”.
In particular, the subject matter shall reflect personality of its author, as an expression of his free and creative choices. When these conditions (both necessary and sufficient) are present, then, the copyright protection can be applied.
Thus, according to the European Court, called by the Belgian Court on June 2018, forth to clarify the application of the Articles 2 to 5 of the InfoSoc Directive (2001/29), even if the shape of the bike seems dictated by the function, the originality could still remain.
Actually, the above reported is not the first decision related to the this specific product. In its Decision 41/2010 of 10 February, Madrid Commercial Court no. 5 ruled on the infringement of the Brompton intellectual property rights. It considered that, although the patent EP0026800 had never been validated in Spain, it was necessary to check if the shape of the Brompton bicycle was imposed by its technical function.
Source: Patent EP0026800 | However, despite the argument of the defendant the Court clarified that only if the shape is solely dictated by function, copyright cannot protect it. This said, the copyright protection applies to a product whose shape is, at least in part, necessary to obtain a technical result. What does it really mean in the practice? The key of lecture of the whole case is “at least in part”. In particular, the subject matter shall reflect personality of its author, as an expression of his free and creative choices. When these conditions (both necessary and sufficient) are present, then, the copyright protection can be applied. Thus, according to the European Court, called by the Belgian Court on June 2018, forth to clarify the application of the Articles 2 to 5 of the InfoSoc Directive (2001/29), even if the shape of the bike seems dictated by the function, the originality could still remain. Actually, the above reported is not the first decision related to the this specific product. In its Decision 41/2010 of 10 February, Madrid Commercial Court no. 5 ruled on the infringement of the Brompton intellectual property rights. It considered that, although the patent EP0026800 had never been validated in Spain, it was necessary to check if the shape of the Brompton bicycle was imposed by its technical function. |
Now it will be duty of the National Court of Belgium deciding IF the shape (i.e. the ability to be foldable into three different positions) of the Brompton Bicycle is truly worth of Copyright Protection as for originality.
Nowadays, for what we can say, we believe that this decision represents a significant precedent and could definitely orient the National Judges towards to an extended interpretation (and, thus, recognition) of the scope of protection provided by the Copyright Law.
This said, we just need to wait to see how far can … pedal every notational Courts!
Silvia Capraro
HFG Law&Intellectual Property
