1 Introduction
In a recent case dated 2 November 2022 , the Swedish Patent and Market Court (the “SPMC”) held that the cushion of the Bruno Mathsson “Jetson” chair is a copyrighted work of industrial design. The defendant, a furniture upholsterer, manufactured, marketed and sold replacement cushions for the Jetson chair between 2016 and 2021. The defendant was found to have infringed the copyright associated with the chair cushion and was prohibited, under penalty of a fine, to manufacture, market and sell the cushion in question. In addition, the defendant was ordered to pay damages and most of the claimant’s litigation costs. 
2 The main issues in the case
For the purposes of this article, the Jetson case concerns the following three main issues which were addressed by the SPMC.
- First, whether the Jetson chair cushion enjoyed copyright protection as an object of applied art (Sw. brukskonst) viewed separately, as opposed to the chair in its entirety. It was common ground between the parties that the Jetson chair, in its entirety, is a copyrighted work.
- Second – if the cushion was copyright protected – whether or not the defendant’s replacement cushion fell within the scope of the Jetson cushion’s protection.
- Third, whether the manufacturing of replacement cushions constituted an infringing act, or if such repairing acts were not part of the copyright holder’s exclusive economic rights.
2.1 The Court’s ruling
2.1.1 The Court’s initial remarks
As a starting point, the SPMC noted that the concept of a “work” in copyright law is harmonised within the EU. The Court concluded, in accordance with well-established case law from the Court of Justice of the European Union (the “CJEU”), that two cumulative criteria must be fulfilled in order for a creation to be viewed as a work protected by copyright. First, the work must be the author’s own intellectual creation, i.e. reflect the author’s personality as an expression of his or her free and creative choices. Secondly, the work must be possible to identify with sufficient precision and objectivity. If the perception of a work is reliant on the observers’ subjective experiences, the identity criterion is not fulfilled.
Citing the CJEU’s case law in the Cofemel and Brompton Bicycle cases, the SPMC further stated that with respect to works of applied art in particular, the technical function of the work may impact both the existence of copyright protection and the scope of protection. The Court held that where the realisation of a subject-matter has been dictated by technical considerations, rules or other constraints which have left no room for creative freedom, that subject-matter cannot be regarded as possessing the originality required for it to constitute a work and, consequently, to be eligible for the protection conferred by copyright. If the components of a design are dictated by technical considerations, the room for creative choices is limited.
The SPMC then clarified, with reference to the Cofemel case and Swedish case law that the protection for works of applied art is basically the same as for any other work. The Court then stated that the inherent level of originality in a work affects its scope of protection. The scope of protection is assessed on a case-by-case-basis. A more original work has a higher degree of protection compared to a less original work, regardless of what kind of work it is.
The Court further clarified that when assessing a work’s originality, the design of prior art works should be considered. If the overall visual impression of a work does not differ to any appreciable extent from previous works, a parallel independent creation is at hand, which may exclude copyright protection for the later work.
In light of the above, the Court came to the following conclusions in relation to the three main issues in the case.
2.1.2 The cushion to the Jetson chair enjoys copyright protection as a work of applied art
As an initial remark, the SPMC briefly concluded that the cushion could be identified with sufficient precision and objectivity. Thus, the identity criterion was fulfilled.
As regards the originality criterion, the Court reasoned as follows. It was common ground between the parties that the Jetson chair, in its entirety, fulfilled the originality criterion and thus had copyright protection. Furthermore, the Court referred to an opinion of the Copyright Panel of the Swedish Society of Crafts and Design (Sw. Svensk Forms Opinionsnämnd), in which the Panel had found that the cushion, in itself, enjoyed copyright protection.
The defendant opposed originality on the ground that the cushion was an indivisible part of the chair and not a work in itself. However, the SPMC stated, with reference to case law from CJEU and the Swedish Supreme Court, that parts of a design, e.g. a chair cushion, could be protected in itself provided that the part displays sufficient originality as such. This objection was therefore viewed as unfounded.
Further, the defendant opposed originality on the ground that the design of the Jetson cushion was purely functional. In this respect, the SPMC found that the technical constraints which exist when designing a chair cushion does not prevent a designer from making free and creative choices which reflects his or her personality.
In relation to the originality assessment, the Court stated that the designer of the chair (and its cushion), Bruno Mathsson, is one of the most internationally renowned Swedish furniture designers. His works display a high degree of freedom of creation. He created the Jetson chair on his own without a specific assignment. Further, based on expert evidence, the Court concluded that there are a variety of ways to design a chair and its cushion, and Bruno Mathsson used his creative capacity when designing the elements of the Jetson chair.
The Court also held that, even though some elements of the cushion already existed in prior art, the use and/or combination of such elements in a new way could still result in one’s own intellectual creation. Thus, the Court found that Bruno Mathsson, when creating the Jetson cushion, had made his own free and creative choices. Thus, the cushion is his own intellectual creation. In conclusion, based on an objective assessment of the Jetson chair cushion’s elements, the SPMC found that the cushion fulfils the originality criterion as a work of applied art and consequently enjoys copyright protection.
2.1.3 The furniture repair company’s replacement cushions fell within the scope of the Jetson cushion copyright protection
The second issue was whether the defendant’s cushions fell within the scope of the Jetson cushion’s protection. The defendant pointed out several differences between its replacement cushions and the original cushion to the Jetson chair, which the claimant contested.
According to the SPMC, the Jetson cushion’s degree of originality leads to its scope of protection being relatively broad and extending beyond a protection for direct copies. Following an analysis of the evidence adduced by the parties, the Court found that, notwithstanding that some details of the cushions were different, the overall impressions of the original Jetson cushion, compared to the replacement cushion, were practically the same. Further, marketing material from the defendant explicitly stated, inter alia, that the replacement cushions “equals the original cushions”.
In conclusion, the Court found that the replacement cushions were direct copies of the original cushions and thus infringed upon the Jetson cushion’s copyright protection.
2.1.4 The furniture repair company committed copyright infringement by manufacturing the Jetson replacement cushions
The defendant’s third objection on the merits of the case was that the manufacturing and sale of the replacement cushions did not constitute an infringing act. The defendant also argued that since the claimant had not objected to the defendant’s, or any other furniture upholsterers’, manufacturing and sale of replacement cushions to the Jetson chair, the claimant had agreed to the manufacturing due to its passivity.
The SPMC concluded that the manufacturing, marketing and sales of a work of a copyright protected work infringed the right holder’s exclusive economic rights. Hence, a copyright infringement would be at hand unless the defendant could prove that they had, explicitly or implicitly, received permission regarding their actions pertaining to the Jetson chair cushion. It was common ground that the parties had not entered into a licensing agreement. Further, the Swedish Copyright Act does not specify what happens if a rights holder is passive towards potential infringing actions. The Court concluded that such lack of regulation could not lead to a permission for third parties to use the rights. The defendant’s objections were therefore disregarded.
As a final objection, the defendant claimed that their manufacturing was comparable to repair and refurbishing of the chair. The owner of a purchased chair has the right to do such work, since the economic rights of the copyright holder are exhausted upon purchase of a copy of the chair. However, the Court rejected this assertion, since such right only applies to private use and not for businesses.
3 Concluding remarks
This case illustrates the developments that have taken place in Sweden regarding the copyright protection of industrial designs. For example, in 1935 the Swedish Supreme Court concluded that the Bauhaus chairs Desta and Thenet did not display sufficient originality to be awarded copyright protection. Similarly in 1969, the Swedish legislator mentioned the String Shelf (Sw. Stringhyllan) as an example of a work that lacked sufficient originality to be protected by copyright.
The reluctance to award copyright protection to works of applied art was subject to a turning point in the 1990s. In 1994 the Swedish Supreme Court found that a two-dimensional textile pattern depicting wild strawberries had sufficient originality and was to be protected by copyright. This proved to be a landmark case for Swedish copyright protection of works of applied art. In 2009, the Mini Maglite flashlight was deemed by the Swedish Supreme Court to be copyright protected as an original work of applied art. This decision was followed by rulings from the Patent and Market Court of Appeal regarding copyright protection for, e.g. the “Daniel Wellington” watch and the “Jackie” chair.
The EU harmonisation of copyright has also paved the way for further progress in respect of copyright protection to works of applied art. The Brompton Bicycle case, concerning copyright to a previously patented foldable bike, is an example of this development. The CJEU came to the conclusion that the substantial technical influences of the bicycle’s appearance were not an absolute obstacle to copyright protection. However, in the following national case, the Belgian court found that the design of the bike did not merit copyright protection.
The comparison between the current situation in Sweden and the situation in the 1930’s or even the late 1960’s shows that the concept of copyright has been substantially developed and that the threshold for protection has been lowered. This lowered threshold for copyright protection could potentially reward designers of applied art with a too broad scope of protection for their works, which in practice could cover concepts, fashion trends or ideas instead of protection for the actual work at hand. Such an imbalance negatively affects the system of copyright protection at large.
The legal development lowering the threshold of copyright protection can, however, to some extent be justified by competition considerations. Without strong protection of intellectual property rights (including copyright) creativity and innovation in, for example, the furniture industry is hampered. A countervailing interest, at least in the case at hand, may be the consumers interest in accessible and affordable replacement parts and by extension also environmental considerations.
The defendant in the present case did not manufacture Jetson chairs, but only its replacement cushions. On the premise that the cushion is protected by copyright, it is of course logical to conclude that such a disposal constitutes copyright infringement. However, as mentioned above, the Jetson case may have some unwelcome implications for consumers and for the environment. In the event the rights holder of an item of furniture protected by copyright is unwilling to manufacture replacement parts, the consumer would thereby be forced to buy a whole new product instead of just the replacement part offered by a third party. This creates lock-in effects that are unfavourable to consumers. It may be discussed whether competition law principles could be applied, e.g. regarding abuse of a dominant position, in such situations.
Unfortunately, from a legal perspective, the Jetson case has not been appealed to the Patent and Market Court of Appeal. As the judgment has become final it remains to be seen how this balance between copyright and consumer protection will be further developed in future case law. A clarification from the CJEU on the balance between copyright protection and the right to repair would be welcome.
