JUrISdIctIOn repOrt: SWeden
cOpYrIGHt prOtectIOn FOr
IndUStrIAL deSIGn
Olivia tolan
Groth & Co KB
Swedish design is recognised far beyond the country’s borders. Objects
“dUrInG tHe LASt 16 YeArS, A cASe
incorporating the natural, uncomplicated look have been successful around
the world. A number of Swedish companies have capitalised on this reputation
HAS WOrKed ItS WAY tHrOUGH tHe
and have become known for producing objects that incorporate innovative SWedISH cOUrtS tHAt HAS FOrced
design. Thus, it is not uncommon for disputes to arise over the IP protection
tHem tO cOnSIder HOW tHe 1970
embodied in a design in Sweden.
enActment OF A deSIGn LAW AFFectS
As a member of the EU, Sweden provides for design protection in accordance
tHe cOpYrIGHt prOtectIOn AVAILAbLe
with the Design Directive (98/71/EC). The creator of a design may rely on
unregistered design rights as well as rights registered at OHIM (Office of the
FOr IndUStrIAL deSIGnS.’’
Harmonization of the Internal Market) or at the Swedish Registration Office.
In addition to, or in lieu of, design protection, copyright may be claimed in the
design of an industrial article. In fact, prior to the enactment of the first design
law in 1970, copyright was the only protection available for new designs.
During the last 16 years, a case has worked its way through the Swedish
courts that has forced them to consider how the 1970 enactment of a design
law affects the copyright protection available for industrial designs.
mag Instrument v. IKeA
Since 1970, industrial designs with a low degree of artistic effort have been
entitled to short-term design protection. Consequently, a finding of relatively
Mag Instrument, an American producer of torches (flashlights), sued IKEA long-term copyright protection should be limited to those industrial designs
in the Swedish courts, alleging infringement of Mag Instrument’s copyright that exhibit a high degree of artistic effort.
on its Mini Maglite torch. IKEA proposed a strict interpretation of the
copyright originality requirement and argued that the industrial design failed
The High Court said that, where the product is of the sort that long-term
to meet this standard. The court of first instance sided with Mag Instrument
protection would restrict competition and product development, the
and found copyright protection existed in the design and, furthermore, found
design should not be generously protected. Protection in such cases may
IKEA infringing.
best be limited to the more restrictive design protection and not extended
to copyright.
The Intermediate Court agreed with IKEA’s argument that the level of
originality required to gain copyright protection as a work of applied art is
In reviewing the specifics of this industrial design, the High Court noted that
higher in the case of an industrial design. Under that standard, the court
Mini Maglite was the first small torch to have a similar format to a standard-
decided that the torch lacked sufficient creative effort to qualify for protection,
sized torch. It considered the torch to be the result of a well-considered design
thus there was no copyright for IKEA to infringe.
effort and therefore entitled to copyright protection.
High court ruling
However, consistent with its concerns regarding overly generous protection
for utilitarian objects, the court sounded a note of caution to would-be
Taking on its first industrial design copyright case in 45 years, the Swedish
litigants and underscored that this was a borderline case. It found that the
High Court overturned the Intermediate Court’s finding and remanded
Mini Maglite just met the requirement for originality and thus granted
the case.
Mag Instrument a limited scope of copyright protection. We therefore do
not expect to see industrial designs with any less originality being awarded
The High Court elaborated that, in its opinion, the scope of copyright
copyright protection in Sweden.
available for an industrial design changed upon the 1970 enactment of the
design law in Sweden. Prior to that time, there was no stringent requirement
for artistic elements in an industrial design for it to qualify for copyright
protection. The enactment of a law specifically directed to design rights gave Olivia Tolan is an attorney at Groth & Co KB. She can be contacted at:
creators new possibilities for protecting the outward appearance of a design. olivia.tolan@groth.eu
www.worldipreview.com World Intellectual property review September/October 2009 73
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