The bar for copyright infringement of industrial works in Denmark is rather high. A copy must be very similar to an original work and an original work cannot be of a simple or technical nature. In a recent Commercial and Maritime Court case, the Danish ceramics company Kähler's Omaggio series of vases and candleholders was granted copyright protection and Bovictus A/S's KJ collection was found to infringe Kähler's copyright.

Background

In Denmark, as in most other countries, handicrafts are protected by copyright as works of art when they meet the requirement of being original and a product of a designer's independent and creative effort. Creative works are protected against copyright infringement up until 70 years after the death of the author or creator.

Traditionally, the protection granted to handicrafts is narrower compared to that granted to visual arts and literary works, as handicrafts often include technical elements and are subject to fashion trends. Thus, case law shows that original products cannot enjoy protection if they are generic; a high degree of similarity between an original work and a copy is required to establish copyright infringement.

In a 2002 Supreme Court case (U2002.1715/5), the Jackpot chair (in black) was found not to infringe the copyright of the Arne Jacobsen Myren chair (in white).

 

Figure 1

In a 2015 case (U2015.992) the DAN chair was found not to infringe the copyright of the TRIPP TRAPP chair.

 

Figure 2

Facts

The complainant, Kähler, is famous in Denmark for its ceramics and especially in recent years for its Omaggio series, which consists of vases and candleholders characterised by their white base with horizontal stripes. Kähler is most famous for its special edition series that features bronze coloured stripes, which sold out in one day in 2014 during which several websites crashed due to the high volume of customers.

Bovictus started marketing a number of vases and candleholders under the name KJ Collection that featured white horizontal stripes in different colours. Danish Design Management A/S is the rights holder of Kähler's products and in 2016 it filed charges against Bovictus.

Figure 3 illustrates Kähler's copyrighted Omaggio products and KJ Collection's allegedly infringing products.

 

Figure 3

Decision

The Commercial and Maritime Court issued its decision in February 2017. It stated that Kähler's choice of shape, glazing and dimensions and the exact placing and colour choice of the stripes on its vases and candleholders were an expression of an independent and creative effort. Thus, the Omaggio series was protected as a work of art under the Copyright Law.

As part of its reasoning, the court stated that the Omaggio series had quickly become well known and well established in Denmark. Although the court acknowledged that the individual elements of the design and shape of the vases and candleholders were known elements in ceramics, it still found that Kähler's products were protected.

Further, the court found that Bovictus's KJ Collection had infringed the Omaggio series' copyright. The court based its ruling on the similarity of the shapes, colours and placing of the stripes and found the overall theme of the Omaggio series and the KJ collection to be highly similar.

Comment

The bar for granting copyright protection seems to have been low in this case and it appears that the court considered arguments that would normally be used in marketing practices.

KJ Collection had re-used almost all elements of the Omaggio series' products and therefore the entire theme of the collection had been copied. Although this is a simple type of product, it is unsurprising that the court found the copies to be sufficiently similar. The most significant element of the decision is that such simple products can enjoy copyright protection.

The fact that the court apparently gave weight to Kähler's reputation and its Omaggio series is noteworthy, as it can be argued that this is irrelevant to copyright protection. The relevant test must be whether it is an expression of the creator's independent and creative effort and not whether a product has a certain reputation or is popular.

Bovictus has filed an appeal and it will be interesting to see if the decision will be altered or reasoned differently. The question of when copyright protection exists in Denmark is not easily answered.

For further information on this topic please contact Maria Dam Jensen or Anette Rasmussen at Awapatent A/S? by telephone (+45 43 99 55 11) or email (maria.dam.jensen@awapatent.com or anette.rasmussen@awapatent.com). The Awapatent A/S? website can be accessed at www.awapatent.com.

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