[Guest post] The Anne Black Danish copyright trilogy: The final say and a tripling of damages and compensation

Over the past few years, The IPKat has hosted a number of posts on the lengthy Danish saga relating to protection and infringement of copyright in pottery created by designer Anne Black. Now, the final word seems to have been spoken, as Katfriends Hanne Kirk and Charlotte Mittet Høfler (both Gorrissen Federspiel) report. Here’s what they write:

The Anne Black Danish copyright trilogy: The final say and a tripling of damages and compensation

by Hanne Kirk and Charlotte Mittet Høfler

The final part of the Anne Black trilogy is here at last. On 22 March 2023, the Danish Supreme Court ruled in the well-known (at least in Denmark) case concerning a hanging flowerpot, a vase and a jar created in 2013/2014 by the Danish designer Anne Black:

In 2016, Netto (a Danish discount supermarket owned by Salling Group) promoted and sold its own hanging flowerpot, vase and jar. One could claim that these three products as well as the overall ‘product line’ had significant resemblance to the Anne Black products and product line. And this is exactly what Anne Black did. Below you see the Netto pottery:

As the IPKat readers may recall from this IPKat post the question of copyright protection, the question of infringement and – not least – the question of damages and compensation were the subject of judicial proceedings.

This dispute turned out to be a longer affair.

Back in June 2019, the Danish Maritime and Commercial High Court issued the first decision and ruled in favour of the designer:

• All three ceramics were copyright protected works of applied art (despite a very lean and simple design, as can be seen in the photos above);
• The Netto pottery constituted copyright infringement; and
• Anne Black was awarded DKK 1.5 million in damages and compensation.

On the question of copyright protection, the decision of the Maritime and Commercial High Court could be seen as a clear indication that the Danish courts would be finally approaching EU convergence in light of Painer, Infopaq and Cofemel and perhaps break from the earlier, quite restrictive approach to copyright protection within the field of applied art and clothing, which was arguably not fully aligned with CJEU case law.

The case was appealed. On 11 June 2020, the High Court of Eastern Denmark decided on the case; we reviewed the result in this IPKat post. As the subtitle of that post indicates (‘how low can you go? Not that low’) the High Court reached a significant different result and granted copyright protection only to the hanging flowerpot and not to the cylindrical vase and the jar with a lid. However, all three works were considered protected products under the Danish Marketing Practices Act and the court held that the Salling Group had made infringing imitations of each product. In addition, the court lowered the total damages awarded to Anne Black from DKK 1.5 million to DKK 300,000 – referring to the modest turnover and profit from the infringing product line. When awarding damages and compensation, the Danish courts are notoriously reluctant to award significant amounts, a fact that has been challenged in recent years based on EU case law. The said decrease in the damages amount was presumably a determining factor for Anne Black applying for a leave to appeal to the Supreme Court. Such a leave to appeal and a chance for ‘a third round’ is not easy to obtain and conditional on whether the case raises “questions of principle”.

Anne Black got the permission.

With the decision (only in Danish) from the Danish Supreme Court this long and highly exposed case has now come to an end. The Danish Supreme Court upheld the High Court’s decision in regard to both the copyright protection, the marketing practices assessment, and also on the question of copyright infringement and breach of the good marketing practices requirements.

From the Supreme Court decision, we learned that ‘the nature and the severity of the infringement’ provides a basis for lowering the requirement for proof of the amount of the loss. This viewpoint is not new as such and well known from case law in other fields of law. This said, this appears to be the first Supreme Court expression of the ‘concept’ in a case on product imitation.

The Supreme Court ruled that the infringements were at least grossly negligent and that it was very likely that the consumer would confuse Anne Black’s designs with Netto’s products. On the proof of the amount of loss, the Supreme Court referred to statements presented by Anne Black showing a significant decline in turnover in the period following the infringement. Furthermore, the court referred to an expert opinion stating, among other things, that Anne Black's brand had been diluted as a result of the sale of the imitations in question in Netto stores at a very low price. This could probably also create the perception that the Anne Black brand was being harmed, and that a future sale to a group of sophisticated and able-to-buy customers would thus be lost. The expert opinion also stated that it is possible, though not unequivocally, to conclude that Netto's ‘special offer’ contributed to the significant change in sales of Anne Black's products. On this perhaps ‘softer’ proof of losses than those seen before, the awarded damages was increased to DKK 1 million.