[Guest Post] Anne Black’s copyright battle part II: how low can you go? - not that low

The IPKat team is grateful to Hanne Kirk and her team at Gorrissen Federspiel (Denmark) for an update on the fascinating copyright dispute involving the designer, Anne Black:

Last year, this GuestKat wrote her first IPKat post about the decision from the Danish Maritime and Commercial Court in the case between Anne Black and Salling Group, which is the company behind the Danish discount supermarket Netto. The case was appealed and, on 11 June 2020, the High Court of Eastern Denmark gave its decision, thereby ending this long and media-intensive copyright dispute.

As readers may recall the case concerned a hanging flowerpot, a vase and a jar designed and created in 2013/2014 by Anne Black:

In 2016, Netto marketed and sold its own hanging flowerpot, vase and jar, which had much resemblance to the products created by Anne Black:

In our previous post the case was introduced in more detail and the overall question was: “how low can you go?” concerning copyright originality. 

The decision by the Maritime and Commercial Court was somewhat surprising, at least from a Danish point of view. It awarded Anne Black copyright protection for both her hanging flowerpot, her vase and her jar under the Danish Copyright Act, despite these works of applied art being of a very lean and simple design, as can be seen in the photos above. The decision was widely discussed by IP enthusiasts in Denmark. Personally this GuestKat was quite satisfied with the copyright assessment. It appeared that a new precedent thereby had been made with the Danish courts finally approaching EU convergence in light of Painer, Infopaq and Cofemel and perhaps a break with the quite restrictive approach to copyright protection which was arguably not fully aligned with CJEU case law. 

Nevertheless, the High Court corrected the case and granted copyright protection only to the hanging flowerpot and thereby not awarding Anne Black copyright protection for the cylindrical vase and the jar with a lid. All three works, however, were considered protected products under the Danish Marketing Practices Act and the court held that Netto / Salling Group had made non-compliant product imitations of each product. 

Furthermore, the Court lowered the total damages awarded to Anne Black to DKK 300,000; quite a decrease from the initial award of DKK 1,500,000. From the grounds it appears that the modest revenue from the three violating imitations was decisive for this result. Danish courts have a general tradition of modesty in awarding damages for IP infringements but that’s a story for another post in future.

It is not that the case became political as such but the potential legal precedent of the opinion in the court of first instance definitely raised political awareness. The Danish Chamber of Commerce participated in the appeal arguing support for Salling Group. On the other side was The Confederation of Danish Industry supporting Anne Black together with The Union of Architects and Designers (FAOD).

The Danish Chamber of Commerce had a quite strong take on the consequences of the first instance decision: 

“The Maritime and Commercial Court's decision includes copyright protection and protection after the Marketing Practices Act which is not in line with precedent, and which will damage the competition significantly, as it will enable monopolization, create uncertainty for actors in the business environment, increase costs and lead to a significant amount of court cases, as well as damage Danish businesses in the international competition.”

The battlefield of copyright originality is ongoing – internationally and definitely also in Denmark. The Maritime and Commercial Court took a stand for copyright protection – but was largely overturned. The High Court told us that you can go low, but not that low as only the hanging flowerpot was copyright protected.

As a final remark, this and a number of similar court decisions have initiated the establishing of an impartial expert body with the task of expressing an opinion regarding protection of architecture and works of applied art, all with The Svensk Form Copyright Panel as a role model. The keywords are quick management by skilled panel members with artistic and business expertise and limited costs. This GuestKat is a member of the working group and will keep you updated in a future post.