Should the appearance of a bicycle be subject to copyright protection? | In Principle

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Should the appearance of a bicycle be subject to copyright protection?

A typical bicycle has two wheels of equal size, handlebars, a frame, and a chain drive for the rear wheel. But do individual bicycle models deserve copyright protection? And if so, what factors determine whether they are granted such protection? These questions were addressed by the Court of Justice of the European Union in a judgment delivered on 11 June 2020.

SI and Brompton Bicycle Ltd v Chedech/Get2Get, Court of Justice judgment of 11 June 2020 (Case C-833/18)

The judgment was issued in a dispute between the English company Brompton Ltd (and its founder, SI) and the Korean company Get2Get, pursuant to a request for a preliminary ruling to the Court of Justice by a court in Liège, Belgium.

Bicycles manufactured by Brompton since 1987 are sold in a form allowing the bicycle to be folded and stored in three different positions: folded, unfolded, and in an intermediate position that keeps the bike balanced. The technical solution applied on Brompton bikes was protected by a patent that expired due to the passage of time.

Get2Get also markets folding bicycles. They resemble Brompton bicycles and, like Brompton bicycles, can assume three positions: folded, unfolded and intermediate.


Source: Opinion of Advocate General Manuel Campos Sánchez-Bordona of 6 February 2020

In the litigation, Get2Get sought to establish that the appearance of the Brompton bicycle does not merit copyright protection, as it arose solely from a technical function allowing the folding of the bicycle. And as this patented solution had entered the public domain, that function can no longer be monopolised by Brompton.

Brompton argued that the three different positions of the bicycle could be achieved using different forms than those used by the creator of the Brompton bicycle, and therefore the particular design of the folding bicycle may be protected by copyright. Brompton pointed out that there are other models of bicycles on the market using a folding technology with a different design from the Brompton bicycle.

Court of Justice ruling

In its ruling, the Court of Justice confirmed the previously adopted method of assessing the grant of copyright protection to items fulfilling technical functions.

It pointed out that if the design of an item is determined solely by technical considerations, rules or limitations leaving no room for creative freedom, such an item does not meet the prerequisite of originality which allows copyright protection to be granted.

At the same time, the court did not exclude the possibility of protecting under copyright law the appearance of utilitarian items performing specific technical functions. Such items may enjoy copyright protection, even if their design was partly determined by technical considerations, if this did not prevent their author from reflecting his or her personality in them by making free and creative choices.

Turning to the assessment of the appearance of the Brompton bicycle, the court pointed out that the form in which the bicycle is presented appears to be necessary to achieve the technical effect of being able to assume three positions. However, this does not preclude an assessment that a bicycle can be considered an original work.

According to the court, the fact that there are other forms of achieving the same technical effect makes it possible to conclude that there is a choice of alternative design solutions, but is not sufficient on its own to conclude that a given creation should be protected by copyright. Above all, it is necessary to examine whether, in choosing the form of the product, the author has expressed his or her creative abilities in an original way, making free and creative choices, designing the product to reflect the creator’s personality.

The assessment of whether an item implementing a technical solution deserves copyright protection should be preceded by an analysis of whether the personality of its author has been reflected in the item (here, the Brompton bicycle). This analysis must be made taking into account all the relevant circumstances of the dispute. The fact that a patent for a technical solution has expired does not exclude copyright protection of the appearance of a product and does not mean that the solution in its entirety, together with the external form in which the technical solution is “wrapped,” is in the public domain and can be freely imitated or copied.

Will copyright protection for utilitarian items be more difficult?

The CJEU judgment confirmed that each intellectual property right is intended to protect a different aspect of the process resulting in creation of a final product. The fact that a patent was granted for a technical solution and has subsequently expired is not decisive in disputes relating to protection of the appearance of utility items performing a technical function. The patent documentation can be helpful in determining which factors of a product were taken into consideration by when designing its form. However, this does not necessarily mean that after expiration of the patent for a technical solution, other entities on the market may freely copy the external form of the product, which may still be protected by other exclusive rights, including copyright.

In addition, it follows from the judgment that litigants wishing to prove before the court that their copyright to items performing utilitarian functions have been infringed will have to demonstrate how the design of the item in question proceeded and how the original personality of the designers was reflected in the decisions taken during the process. The existence of alternative possibilities to design the appearance of a given technical solution indicates the existence of creative freedom. However, to show that a solution deserves copyright protection, it will also be necessary to provide an explanation of why the author made a particular choice when designing the appearance of the product, to show that the choice made reflects the designer’s personality.

Ewa Nagy, attorney-at-law, Intellectual Property practice, Wardyński & Partners