Copyright: subsistence in functional shapes


The European Court of Justice (ECJ) has ruled that copyright may subsist in a product whose shape is necessary to obtain a technical result, provided that the shape is an original expression of the author's free and creative choices and personality.


The ECJ has held that for subject matter to be classified as a work under the Copyright Directive (2001/29/EC), the subject matter concerned must be original in the sense that it is the author's own intellectual creation (Infopaq International A/S v Danske Dagblades Forening,

The ECJ has also held that the only requirements for a work to achieve copyright protection are that the work is original in the sense that it is the author's own intellectual creation. This requirement will not be satisfied if the realisation of a subject matter has been dictated by technical considerations, rules or other constraints which leave no room for creative freedom. (Cofemel - Sociedade de Vestuário SA v G-Star Raw CV, 

The ECJ has ruled on the interpretation of the Trade Marks Directive (2008/95/EC) and the grounds for refusal or invalidity in relation to signs that consist exclusively of the shape of goods that are necessary to get a technical result or the shape that gives substantial value to the goods (Gömböc Kutató, Szolgáltató és Kereskedelmi Kft v Szellemi Tulajdon Nemzeti Hivatala,


B sued G for copyright infringement of the shape of its iconic folding Brompton bicycle which has three positions: folded, unfolded and stand-by. G also manufactured a folding bicycle with the same three positions. B previously held a patent for this invention, which had expired. G argued that the appearance of B's product was dictated by its technical function and that it deliberately adopted the folding technique because that was the most functional method. B argued that other shapes were present on the market and that this demonstrated the originality of its product in that free and creative choices had been made in its realisation. 

The Belgian court requested a preliminary ruling from the ECJ to clarify whether a product with an industrial application whose shape is dictated by its function may attract copyright protection.


The ECJ ruled that, under Articles 2 to 5 of the Copyright Directive, copyright protection applies to a product whose shape is, at least in part, necessary to obtain a technical result, where that product is an original work resulting from intellectual creation. Intellectual creation occurs when, through that shape, its author expresses their creative ability in an original manner by making free and creative choices in such a way that that shape reflects their personality. It is for the national court to verify whether this test is fulfilled in all the circumstances of a case. The relevant criteria are these:

  • A copyright work must consist of original subject matter that is the intellectual creation of the author, and must be an expression of that creation.
  • To be original, subject matter must reflect the author's personality, as an expression of that author's free and creative choices. If the creation of the subject matter is dictated solely by technical considerations, rules or constraints, it will not be sufficiently original to constitute a copyright work. However, it is possible for the creation of subject matter to be dictated by technical considerations but also to be an expression of free and creative choices reflecting the personality of the author.

In the Belgian proceedings, the shape of the folding bicycle was necessary to obtain a technical result, but it will be for the referring court to ascertain whether, despite that, it was an original work resulting from intellectual creation. That would not be the case if the shape was wholly dictated by technical considerations, rules or other constraints which left no room for creative freedom, or room so limited that the idea and its expression became indissociable.

The existence of other possible shapes which could achieve the same technical result is not decisive, nor is an earlier patent for the shape, although it might be relevant. The intention of the designer is also not decisive as to whether the shape constituted a copyright work or not. Having to prove intention would increase the evidential burden and introduce an unhelpful element of subjectivity.


This decision may encourage UK designers of functional products to pursue copyright claims, at least until Brexit, by indicating that patent or other intellectual property right, such as design, protection, does not of itself preclude copyright protection, which is of potentially much longer duration, for the same item. This cumulative protection is in line with the approach previously taken by the ECJ in Cofemel, which confirmed that designs which meet originality requirements can be protected as copyright works, irrespective of aesthetic considerations. The ruling is also consistent with the recent ECJ ruling in Gömböc that a product may be protected simultaneously or subsequently as a design and as a trade mark.

After Brexit, at the end of the transition period, which is currently 31 December 2020, the UK need no longer follow EU law, and will be free to follow its own path which may or may not diverge from EU copyright law.  

Case: SI, Brompton Bicycle Ltd v Chedech/Get2Get C-833/18.

First published in the August 2020 issue of PLC Magazine and reproduced with the kind permission of the publishers.  Subscription enquiries 020 7202 1200.


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