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?

Triumph over Beyoncé

The Munich District Court wants Beyoncé to take off her underwear - only to avoid further copyright infringement, of course!

Sony, the producer of a music video with Beyoncé, received an injunction order issued by the court on behalf of the Munich lingerie company Triumph due to copyright infringement in December 2009. In this video, the famous US singer wears an unusual and stylish combination of underwear with bracelets and a pair of sunglasses.

Sony’s appeal has recently been refused by the court. The design of Beyoncé’s underwear, says the court, is similar to what a design student from Bulgaria drafted for a lingerie competition organised by Triumph in 2009. The student had become one of the finalists of this competition, and his design was even published in Italian Vogue. In an interview he said that he had been inspired by Picasso.

In the judge’s opinion, the design has a high level of individuality and, therefore, it assumes a high level of protection. The decision is only based on copyright, but protection as an unregistered Community design also comes into consideration. So far so good, but in addition to the legal matters, Triumph showed its probably deeper interest in publicity: it offered Sony and Beyoncé to withdraw the order if she would become an honorary member of the Jury for the next lingerie competition. She declined.

It is rather certain that this case will go to a higher court. Let's hope that underwear labels and attractive singers will find harmony soon again.

This post was contributed by Adrian Kleinheyer, trainee lawyer in the Munich office of Bardehle Pagenberg.

Hang on to your seats ...

The decision of the Court of Appeal for England and Wales in Virgin Atlantic v Premium Aircraft Interiors is expected this Thursday. At first instance Mr Justice Lewison held that Virgin had failed to show that Contour infringed either its unregistered design right or its patent relating to the airline's business class seating system.

In the course of his lengthy and carefully worded decision Mr Justice Lewison reiterated the difficulty of interpreting the unregistered designs provision of section 213 of the Copyright, Designs and Patents Act 1988 and reviewed the role of the expert witness in design infringement proceedings. Class 99 awaits the outcome with excitement.