[Guest post] Conference report: Design & Copyright Law – siblings or rivals?

A few weeks ago, the UNION-IP Designs Commission in association with the UNION-IP Netherlands national group – “Design & Copyright Law: siblings or rival?” held another roundtable session (Thursday Thingies), the topic of which related to the overlaps between copyright and design law (details of the event to be found here). Katfriend Linnéa Hedström (Lind Edlund Kenamets Intellectual Property AB) was also there and has now prepared a report for The IPKat.

Here’s what Linnéa writes:

Conference report: Design & Copyright Law – siblings or rivals?

by Linnéa Hedström

When I saw the headline of the invitation forwarded by my colleague, I was immediately intrigued. In my profession as an IP Attorney, I have always found the relationship between these two IP rights (especially between design and copyright for applied art) interesting. I also started thinking about the numerous Christmases with my sister and thought: sibling or rivals, can you really have one without the other? Isn’t there always some rivalry (healthy rivalry, that is) when it comes to your siblings?

The invitation related to a Roundtable seminar organized by the UNION-IP Design Commission in Amsterdam on November 11. I attended it together with my colleague Fabian Edlund, the current President of UNION-IP.

The Roundtable was specifically concerned with design and copyright law, and sought to illustrate two questions from different European perspectives:

1) where does design protection end and where does copyright protection start? and

2) do the two rights complement or exclude each other?

The Roundtable opened with a fascinating tour d’horizon by David Musker, Professor at Queen Mary University of London, providing a thought-provoking “EU view from outside”. Following this introduction, Veronique Pede (Partner, Cape IP Law) provided a Belgian/Dutch perspective sharing some exciting fresh case law including the latest referral to the CJEU. Next was Henning Hartwig (Partner, Bardehle Pagenberg) with a German perspective and a bouquet of brand-new court decisions related to, inter alia, Birkenstock, Porsche 911, and Rubik’s Cube. After a break, Monia Baccarelli (Partner, Macchi di Cellere Gengemi) took us to Italy as the “place to be for design and copyright”, providing a unique Italian perspective on protecting icons such as the Moon Boot or the Ferrari 250 GTO – under copyright law, of course! Finally, Catriona Smith (Consultant, Wiggin) shared an excellent overview on the status quo and possible further course of action from the UK perspective, including the most recent WaterRower case.

Before the session started a thought crossed my mind – how different will the perspectives really be, considering many years of EU harmonization? At the end, I was fascinated by how different the perspectives presented during the session really had been. In Benelux you can apparently argue that if you have established design protection you automatically also have copyright protection (and vice versa). In Italy, first instance courts seem to not really follow the Cofemel case law (C-683/17) and apparently also tend to find designs from Italy to be rather distinctive and original. And in the UK, there appears to be a wide-spread frustration regarding copyright protection for applied art with judges desperately calling for clarification by the legislators. Indeed, to me as a Swedish practitioner, only the German case law seemed somewhat familiar (where I gathered that the major difference between design and copyright law is that design law proceeds from a one-to-one comparison while copyright law applies an overall comparison to assess subsistence of copyright).

The Roundtable left me with a new spark of interest in the interplay between design and copyright, and with renewed insight on the complexity of the European IP landscape and its different perspectives. I think it also strengthened my belief that some healthy sibling rivalry is most likely a good thing and that the two IP rights do complement each other.

I met some brilliant new colleagues in the IP field and was able to engage and participate in interesting discussions and reflections. Thank you, UNION-IP Design Commission, for organizing a very good session.