Functionality does not necessarily hinder copyright protection

Written by Ramsay Monime | July 31, 2020


Can a functional object, such as the iconic Brompton Bike, be protected by copyright law?

This was a question that the Court of Justice of the European Union (the CJEU) had to consider recently in Case C‑833/18, SI, Brompton Bicycle Ltd. v. Chedech / Get2Get.

This question arose from a preliminary reference from a Belgium Court in a case concerning the iconic Brompton bike, where the manufacturers of the Brompton bike sued a company that made a copycat product for copyright infringement in Belgium.

What did the CJEU decide?

The CJEU found that a functional product in principle could be protected by copyright law, provided it is original, i.e. its author is able to exercise free creative choices in its design. However, if the product’s design is solely dictated by function copyright cannot protect it.

In emphasising that originality was the only criteria that needed to be assessed for copyright protection, the CJEU explained that: a) the intention of the infringer is not relevant in this assessment; b) the existence of other shapes that can achieve the same functional result of the design is not determinative for there to be a finding of originality; and c) the existence of earlier patents is only relevant to the extent it may shed light on what was considered by the author of the design in choosing its shape.

Having made these findings, it is now up to the Belgium Court to assess whether the Brompton bike’s design is original.


This decision is beneficial for designers as it makes clear that functional designs are protected by copyright law, provided they are original.

Although the UK courts have recently relaxed the criteria for copyright protection for works of artistic craftsmanship, it is not certain whether this recent CJEU decision will be followed by them, especially once the UK’s transition period expires after 11 pm on 31 December.

That said, it is still beneficial to have a decision like this that strengthens designers’ positions in EU member states which are bound by this decision. This decision will also certainly make copyists pause for thought before copying as the tide of case-law, especially following Response Clothing v Edinburgh Woollen Mill, is not turning in their favour.

Written by Ramsay Monime, Senior Associate

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