In a recent case, the Court of Justice of the European Union (CJEU) considered whether a functional shape is precluded from copyright protection. The case was referred from the Commercial Court of Liège (Belgium) (C-833/18).
The original case before the Commercial Court of Liège concerned a claim for copyright infringement brought by an English company, Brompton Bicycle Ltd (Brompton). Since 1987, Brompton has marketed and sold folding bicycles. The Brompton Bicycle, which was protected by a patent until 1999, has the distinct feature of having three different positions: (i) a folded position; (ii) an unfolded position; and (iii) a stand-by position enabling it to stay balanced on the ground.
When a South Korean company, Get2Get, started marketing a bicycle that could also be folded into the same three positions as the Brompton Bicycle, Brompton brought a claim for copyright infringement. In its defence, Get2Get claimed that the shape of the Brompton Bicycle could not be protected by copyright law because its appearance is dictated by the technical solution sought, which is to ensure that the bicycle can be folded into three different positions.