When toilet seats make impressions on their users

The Starck 3

In Duravit AG v B&N Developing ApS, Duravit accused B&N's BEN Studio-toilet of infringing its design rights in the 'Starck 3' toilet, for which it held a Community design registration. The Danish Maritime and Commercial Court dismissed the infringement claim, awarding costs in favour of the successful defendant.

In the case of both parties' toilets there was (i) a raised rear edge, (ii) a clearly marked band around the outside of the bowl and (iii) square mounting holes in the sides. The design of the band and the mounting holes, and to some extent the design of the raised rear edge, were not functional but were largely the result of the designer's fancy. However, the informed user would have different impressions of the two products since (i) the Starck 3-toilet was much longer than the BEN Studio-toilet, creating the effect of a distinct space between the rear edge and the seat and (ii) Starck had a less sharp band around the outside of the bowl, less significant and different designed cuts for the mounting holes and more rounded edges, producing a narrower and more elegant impression than did BEN. This being so, there was no infringement.

The Court ordered Duravit to pay Dkr50,000 in costs to B&N.

Class 99 would have liked to know more about this case.  In particular, in relation to which precedents and what standards did the court determine who was the informed user?

Source: "Court rejects design registration violation claim" by Mads Marstrand-Jørgensen (Norsker & Co, Denmark), published online for International Law Office.

Pilgrim's Pyrrhic victory?

"I bought it in China - I had no idea it was a copy". Can a company these days pass the buck to their Chinese supplier, or should they not at least ask the question? This seems to have been the issue in Pilgrim A/S v Dansk Smykkekunst A/S (Maritime and Commercial Court, August 17 2010, Case V-6-09), reported by Mads Marstrand-Jørgensen of Norsker & Co in the ever-helpful International Law Office newsletter.
Pilgrim sued on the basis of a men's necklace. They failed to cross the copyright threshold, and Denmark's usually-reliable Marketing Practices Act let them down because they did not establish Danish sales, apparently. However, subsistence and infringement of Unregistered Community Design right were found. A good result? Alas, no. The Court held that Pilgrim should have no damages or compensation because "the Court is not satisfied that Dansk Smykkekunst has known or should have known Pilgrim's necklace" and, indeed, they made Pilgrim pay Dansk's costs.
Somehow, it seems wrong to us that the proprietor, after infringement has been shown, has to pay the infringer's costs because the infringer did not determine that the goods were infringements. On the one hand, of course, it is generally better to chase the copyist and manufacturer rather than the retailer. But on the other, that is far from easy when they are located abroad - and they know it. So we think it is just a bit too easy these days to play the innocent or ignorant importer. Is there anyone out there who is unaware that fakes can be bought in the Far East? We doubt it.
But what do you think?

Design copyright in Denmark: the minimalist approach

"Switched off: court rules no violation of copyright in design case", by Mads Marstrand-Jorgensen (Norsker & Co), was published earlier this month on International Law Office. You can read it in full here.

In short, Danish company Lauritz Knudsen developed, made and sold electronic materials in Denmark for over 100 years. Its prize-winning LK FUGA series of switches has been in production since 1981. In 2004 L-Team began selling its L-control series of switches which, LK believe, infringed its copyright and rights under the Marketing Act (a sort of statutory version of the delict of unfair competition).

The Maritime and Commercial Court held that LK's switches were protected as copyright works and that they were entitled to protection against imitations under the Marketing Act. However, since a series of electrical switches must be considered as basically functional, this reduces opportunities for design development -- which is limited by the dimensions of plugs, by industrial standards and by legislation.

So was LK's copyright infringed? After describing the allegedly infringed product in detail, the court observed that copyright protection of the LK FUGA product range must be considered as very narrow and limited to very close imitations. Under the circumstances, the "not insignificant variations in design as to the arching of the tangent which oppose LK FUGA's in convex and curved frames" gave a somewhat differentiated appearance to the L-control product with the result that, on an overall evaluation, there was no infringement.

This decision is on appeal to the Supreme Court.