Protecting luxury designs: originality and craftsmanship in UK and EU copyright law

Freeths’ IP experts Martin Noble and Eleanor Bradberry break down recent decisions in the THJ Systems and WaterRower cases

Original design is at the heart of luxury, offering customers quality and exclusivity. From fashion to automotive and beyond, high-end brands have created iconic designs that others have tried to emulate. Protecting your brand’s designs is vital, but what can you do when your patent or design rights expire? Can you use copyright law to protect your design? Does UK law trump EU law?  

Defining copyright originality using the EU test – THJ Systems Ltd

Late in 2023, Freeths won a copyright infringement case for THJ Systems, demonstrating that copying the software’s graphic user interface (GUI) infringes copyright. In this case, the judge applied the EU test of the “author’s own intellectual creation” and found that the software creator chose what to include and where, as well as in the GUI’s visual appearance. He also found that the degree of visual creativity in the software’s risk and price charts was low but that the design was still original enough under the EU test to attract copyright protection.

Applying the EU originality test to a rowing machine – WaterRower

In November 2024, a judge at the Intellectual Property Enterprise Court (IPEC) found that the WaterRower rowing machine design was original under the elevated EU law test of originality. Any design rights covering the WaterRower machine had expired, and the company claimed it was protected by copyright as an artistic work. The remaining issue was whether artistic merit should play a part in the court’s determination over copyright protection.

Artistic merit – WaterRower

In November 2024, the High Court decided that while protection under EU law did not require there to be any artistic merit, under the UK Copyright, Designs and Patents Act (CDPA) the WaterRower luxury rowing machine was not protected by copyright as a work of artistic craftsmanship.

The WaterRower decision attempts to define the scope of artistic craftsmanship in the UK. Some people have said that the decision leant too much towards commercial intention; that WaterRower was a commercial development with the business goal of creating a commercially successful rowing machine, rather than creating something with eye appeal in an artistic sense. There was support from others for the craftsmanship involved in creating a hand-finished wooden product that was markedly different from the rowing machine designs that had existed previously. 

Although the High Court decided here that the WaterRower design was not a work of artistic craftsmanship, in 2020, IPEC decided that a fabric design by Response Clothing could qualify as a work of artistic craftmanship and be entitled to copyright protection.

The future

The WaterRower case may be the subject of an appeal, hence why the judge covered off so many of the ‘what if I'm wrong?’ points. The case is eminently appealable, simply because there is a massive clash between the UK and EU positions. Effectively we have a decision that says, under EU law, WaterRower is original and its authors own intellectual creation. In another case that deals with this tension between the CDPA and EU law, AGA will be visiting the Court of Appeal in 2025. AGA is appealing against the decision that the instrument panel on its cooker is not an artistic work and so not protected under copyright.

Yet questions remain. Will the UK position continue to be misaligned with the EU legal position? Or will the UK law be changed to align with the EU? 

For advice on protecting your luxury brand’s designs, copyright and other intellectual property issues, contact Martin Noble on 0345 030 5699 or [email protected] or Eleanor Bradberry on 0345 634 2587 or [email protected].

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