The Danish Supreme Court sided with Alfi, ruling that a competitor fell foul of the Danish Marketing Practices Act by selling thermal carafes that were slavish reproductions and very close imitations of Alfi’s Juwel carafe.
Copyright is an exclusive right for creators of literary and artistic works to produce copies if their work is the result of an independent creative effort. If the work cannot be proved to be the result of an independent creative effort and possess originality, the creator may rely on the Danish Marketing Practices Act instead. Although it provides a more limited protection, the Danish Marketing Practices Act does protect against slavish reproduction and very close imitation. In this case, the Act was enough to stop a competitor marketing its products.
German Alfi has manufactured and sold thermal carafes since 1914. Alfi collaborates with award-winning designers from all over the world and even has a carafe exhibited at the Museum of Modern Art in New York. One of its most popular models is the Juwel carafe, which is known for its special pouring spout and hinged stopper. Those features caught the eye of a competitor.
In 2005, Alfi found out that a Danish retailer was selling thermal carafes which seemed to be copies of Alfi’s thermal carafes. Alfi therefore wrote the manufacturer that the thermal carafes infringed Alfi’s rights. The competitor ignored the letter and continued to display the carafes on its website.
The matter ended up in the Copenhagen Maritime and Commercial Court after the enforcement court had granted an interim injunction to stop the competitor marketing its own carafes. There Alfi submitted that the Juwel carafe was an artistic work protected by copyright. Alfi’s other models also had to be copyright protected because they were all inspired by the Juwel carafe. The competitor’s carafes were therefore trading on the special status enjoyed by Alfi’s carafes.
The competitor admitted that some of the carafes infringed the Juwel carafe. But the competitor also argued that all Alfi carafes could not be copyright protected simply because they had been developed from the Juwel carafe, which meant that they could not be characterised as the result of a creative effort.
A court-appointed expert found that the Juwel carafe was the result of the designer’s creative effort. He also found that the competitor’s carafes were very similar to Alfi’s carafes.
Thus, the Copenhagen Maritime and Commercial Court made the injunction against the competitor permanent. But the competitor did not give up and appealed to the Danish Supreme Court, now submitting that the copyright had lapsed because there was no proof of who had designed the Juwel carafe.
The Danish Supreme Court affirmed the judgment of the Copenhagen Maritime and Commercial Court, adding that it was not necessary to involve the Danish Copyright Act because the provisions of the Danish Marketing Practices Act on good marketing practice were sufficient since all of the competitor’s carafes could be characterised as either slavish reproductions or very close imitations.
Norrbom Vinding notes:
- that, in cases concerning product imitation, it is always a good idea to consider whether to rely on the Danish Marketing Practices Act, especially if the position with respect to IP law protection is unclear.