One company seeking clarity on this issue against our client Liking Limited is WaterRower Limited, maker of the water resistance rowing machine. A well known product that you may have seen in your local gym, on TV or in a publication.
First invented by Mr John Duke in the 1980s in the US, several patents were obtained for the rowing machine in question which have since expired. Furthermore, the WaterRower is no longer covered by design protection.
In 1996, harmonising UK and European copyright protection, the length of copyright in the UK was extended to typically 70 years following the death of a creator.
It was in this context that a copyright infringement claim was made by WaterRower against our client Liking Limited in the Intellectual Property Enterprise Court (IPEC). A Hong Kong-based company, Liking started to supply the UK market with their version of a water resistance rowing machine called Topiom in 2019.
Under Section 4(1) of the Copyright Designs and Patents Act 1988 (CDPA), protection is afforded to works of artistic craftsmanship. No further clarification is provided in the statutes as to what the term ‘artistic craftsmanship’ means. However, the leading case law, Hensher, which deals with this question, is difficult to apply, as often acknowledged in later judgements, with each of the five Law Lords taking slightly different positions as to the meaning of artistic craftsmanship.
Given the binding nature of pre-Brexit European case law on first-instance UK Courts such as the IPEC, the divergent UK and European principles governing copyright protection further complicate matters.
The European criteria for copyright protection was most recently expounded by the Court of Justice of the European Union (CJEU) in Cofemel, where an object can enjoy copyright protection if it is the intellectual creation as a result of free and creative choices of the creator. Artistic craftsmanship is not a requirement.
The inconsistencies and conflict between the UK and EU case law have defined one of the issues at stake in this case, presenting the UK Courts with the opportunity to take the bull by the horns, and provide clarity on the UK position. A finding inf favour of copyright infringement, may open the floodgates for similar copyright claims relating to a wide range of aesthetic, practical product designs.
Albright IP has been directly involved with this case from the outset, assisting our client and working as part of the legal team to defend our client’s case. Alongside our clients we are eagerly awaiting the ruling of the court in this important case.
If you have a problem with infringement of a design or a copyright work, please feel free to get in touch to see if we can assist.
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