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UNITARY PATENT

In 2012 Member States and the European Parliament agreed on the "patent package" - a legislative initiative consisting of two...

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Tripp Trapp - a chain of copyright cumulation chair cases

The Tripp Trapp chair, depicted below, was created by Norwegian designer Peter Opsvik in 1972 for his own son. With removable seat-plates and foot-plates inserted into slots between slanting uprights, it “grows with the child” – the same chair can be used from infancy to adulthood by re-positioning the plates, a feature which was patented by Stokke, Mr Opsvik’s licensee, in many countries. But it is also striking in appearance, and since the expiry of the patents two decades back, competitors have widely copied not just its function but also its good looks. The UK patent, GB1427266, is summarised:
1.    An adjustable chair comprising: side members (1) which at their lower ends are provided with support means (2) and which carry a back rest (3) extending between their upper end portions, a seat plate (7), and a footrest plate (6), said side members (1) being provided with substantially horizontally extending guides (10) for the edges of said plates (7), (6) whereby both the seat plate (7) and the footrest plate (6) can be inserted in any one of a plurality of positions so that a plurality of different seat heights and different foot-rest heights are available.

Readers of our sister-publication Make Your Mark will recall that Stokke’s 3D trade mark registration for the shape of the chair was challenged by Hauck, a competitor, and after a cryptic (but essentially negative) judgment by the Court of Justice of the European Union it is back with the Dutch Courts for final judgment on validity.

However, less publicity has been attracted by Stokke’s long-term and very successful campaign of copyright litigation, which over the course of 20 years and 100 cases has successfully taken their chair to the Supreme Courts of Germany, Norway, Denmark (3 times) and the Netherlands (3 times) and to a host of appellate courts in other countries including Belgium, France, Spain, Sweden and Switzerland – and, beyond Europe, Japan. In each country the eventual result was a finding that, over 40 years after it was created, the chair itself was suitable subject-matter for copyright protection.

The German company Hauck, the most persistent of competitors, desisted from identical copying after a warning letter. They added a strut at the back of the chair to produce their “Alpha” and “Beta” chairs, which sold well for 12 years before Stokke eventually challenged them in court.

Between 1998 and 2008, Stokke were successful in copyright infringement actions against the Alpha and/or Beta, in Belgium, Denmark, France, Germany, the Netherlands and Spain – a clean sweep.

At this point, Hauck changed their Alpha design, abandoning the L-shape used by Stokke and substituting a more conventional A-frame which nonetheless retained the style and functionality of the Tripp Trapp chair. The litigation ran from 2008 to 2015 in the Netherlands and France.

This time around, Stokke were less lucky; Hauck won at all instances in both countries, perhaps unsurprisingly since the functionality of the chair was the subject of a lapsed patent and the characteristic L-shape was no longer present. However, over the same period Stokke succeeded in blocking fairly similar chairs from other manufacturers in Sweden and the Netherlands.
The IP High Court of Japan also considered (amongst others) chairs which were somewhat similar to the Hauck Alpha and Beta, and New Alpha and Beta, and found no infringement.

Other infringers made more creative efforts to compete. Two curved chairs, called Carlo and Oliver, were litigated in Germany, the Netherlands and Norway. Here, there was less consistency across Europe. In Germany, the Carlo chair was found to infringe and likewise the Oliver chair in Norway. However, in the Netherlands the defendant was successful.

These findings of infringement are, frankly, surprising to practitioners in the common-law world. Should copyright protect mass-produced designs of useful articles at all? The common-law preference has been for protection by registration for fixed terms, and thereafter for open competition. Common-law copyright regimes generally do not recognise “works of applied art” as protected subject-matter. Mass-produced and/or useful or functional articles either lack copyright protection, or its term is clipped to 25 years or less. This is no doubt why there are no traces of copyright litigation on the Tripp Trapp chair in any common law country.
As to scope, it is easy to understand why the Hauck Alpha was found to infringe – it appears to take the Tripp Trapp chair in its entirety, adding and changing it only in minor respects. However, the curvature of the Oliver and Carlo chairs looks quite different to the stark angularity of the Tripp Trapp chair, and the German and Norwegian courts seem to come close to protecting the method of construction of the chair rather than its appearance.

What, then, underlies the trend towards protection of Tripp Trapp? In the past, Germany, France, the Benelux countries and others protected “applied art” which rose to the same level of creativity as the fine arts. However, recent case law of the EU Court of Justice proposes a single test of originality for all types of copyright work: namely, that works should be “original in the sense that they are the author’s own intellectual creation”. In 2013, in one of Stokke’s cases before the Supreme Court of the Netherlands, the court applied that test. The German Supreme Court has recently done likewise, in the Birthday Train case discussed overleaf; the Austrian Supreme court accepted the same test some years previously.

As the “own intellectual creation” test was originally devised for computer programs, photographs and databases, it was intended to be met by relatively utilitarian works. Applying it to furniture represents a lowering in Germany and elsewhere of the former high standard for copyright protection so that many more useful articles will be protectable, typically for a century from their date of creation. It may be “Over-Strength, Over-Regulated, Over-Rated”, as the late Sir Hugh Laddie memorably put it, but copyright for useful products is here to stay in civil-law Europe and, increasingly, beyond.