Fhima, I; (2020) The CJEU decision in Brompton Bicycle (Case C-833/18): An original take on technical functionality? European Intellectual Property Review , 42 (11) pp. 761-767.

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Abstract

In Brompton Bicycle, the CJEU considered copyright protection of functional product designs. Protecting such artefacts through copyright law raises difficult questions of whether subject-matter previously protected by patent or design law, but which has since entered the public domain, should be re-enclosed via copyright. However, unlike trade marks and designs, EU copyright has no functionality exclusion, nor, following Cofemel, can technical works be excluded from copyright per se. Nonetheless, using basic copyright principles of originality and the designer’s creative freedom, the Brompton court crafted a functionality exclusion in the absence of a legislative basis. It is argued that, while this decision demonstrates a degree of convergence in the approach to functionality across the different IPRs, how the functionality exclusions apply in practice is different. Also, questions remain about how this decision will be applied in practice—in particular, what will be considered to be a relevant design constraint and regarding the approach to subject-matter consisting of a mixture of technical and non-technical features?

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