An End to Faking It

In Insights, Uncategorized

16 October, 2013

Contrary to what many think, IP-law is not subject to an EU-wide harmonisation. This is probably due to the existence of the Community Trademark but bear in mind that all the national systems are still well and alive and existing alongside the EU-trademark.

Recently, the UK Copyright legislation has been amended. Very frustrating for rights’ owners, UK Copyright expired 25 years after the creator’s death. Most other countries have 70 years.

This meant that especially objects of industrial design and designer furniture were reproduced quite legally in Britain. Mies van der Rohe’s Barcelona chair, Arne Jacobsen’s Egg chair and similar classics were among the popular items. The big frustration for rights’ owners was that these products were widely exported across the EU borders.

Some British knock-off manufacturers even had web pages targeting, say, German, Italian or Danish costumers. Some manufacturers even had concrete and public plans of setting up showrooms where consumers from countries with higher copyright protection could see the products and order them.

This was all legal under UK law – but not legal in the rest of the EU member states.

A common misconception by many consumers in the EU is that goods purchased in one member state in general may circulate freely. This is not the case when the goods are illegal in the member state whereto they are ordered. The Internal Market of the EU will always yield to IP-rights. Offering goods for sale indirectly through show rooms does not change this. However, for the rights’ holders enforcement may be extremely costly and cumbersome as each infringement had to be countered nationally.

All this is now well in the past. A recent amendment to the UK Copyrights, Designs and Patents Act 1988 has brought the protection of copyrighted materials in the UK in line with the continental European countries, i.e. 70 years after the creator’s death.

Surely a good thing in the name of harmonisation of legislation, the protection of rights and an incentive to invest long term and create jobs in the creative business sector in the UK?

So is everybody now happy? No. The makers of these classic furniture knock-offs have complained that their business and the jobs will be heavily affected. Lamentable, but hardly a valid argument for sustaining a business that exists mainly with the focus of selling copies to countries where protection is high. And at the end of the day we are still talking about (now) illegal counterfeits.

Others that may be unhappy could be companies such as McDonalds. In Europe McDonalds famously rebranded their restaurants with designer furniture. Then quickly after the stock of same furniture was discovered to be heavily supplemented with designer knock-offs. Although this furniture to some extent – at least in the UK – may have been legal, McDonalds were publicly lambasted by Danish furniture company Fritz Hansen. The company suspended all supplies to McDonalds and accused McDonalds for endorsing piracy and setting intellectual property rights aside. I am sure that many will agree that this was not PR which McDonalds was happy with.

For lovers of copy furniture all is not lost. The works of Arne Jacobsen will exit copyright in 2041 and Mies van der Rohe in 2039…

Thorbjørn Swanstrøm, Trademark and Design Attorney, Attorney at Law, Partner

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