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CJEU (Brompton): Copyright Also For Functional Shapes

Actualizado: 20 oct 2021

The Court of Justice of the European Union (CJEU) has further extended the applicability of copyright to products whose shape serves a technical function. This is another extension of the use of copyright that follows the path of the Cofemel case.

The background brings us to Belgium, where the iconic Brompton bicycle - created in the UK in 1975 and known for their tiny size and foldability - was being allegedly counterfeited by a Korean brand. Brompton, who had held a patent on the product that had now expired, sought to protect its bicycle by claiming copyright infringement instead.

The Brompton bicycle and its Korean alleged imitation

The Liege court analysing the case refered to the CJEU the question of whether a shape with a technical function such as this can be protected by copyright. One could argue that, in the presence of technical features, there's no room for creativity as the designer only pursues function.

The CJEU held that copyright protection is indeed available to works whose shape is, at least in part, necessary to obtain a technical result, as long as the product is "an original work resulting from intellectual creation, in that, through that shape, its author expresses his creative ability in an original manner by making free and creative choices in such a way that that shape reflects his personality".

This case is of great interest because it continues expanding the field of copyright to items not originally expected, like Cofemel did with clothing, and further clarifies the complex issue of intellectual property cumulation. It will also be good news for brands built around iconic products - cars, furniture, appliances - whose patents or designs have already expired. Thanks to this ruling, they will be able to continue with the exclusive exploitation of their portfolio under copyright claims.

You may read the full decision, here.


Victoria Sofía Martín Santos

Esquivel & Martin Santos

Trademark, Patent and IP law firm in Spain

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