Deals & Cases

Swiss Federal Supreme Court confirms copyright protection of the Feuerring as a work of applied art

MLL Legal successfully represented Andreas Reichlin before the Swiss Federal Supreme Court and achieved confirmation of copyright protection for the Feuerring as work of applied art. Five years after the Federal Supreme Court’s last decision on works of applied art in the Max Bill case, the Federal Supreme Court addressed in its ruling of 17 June 2022 questions of copyright protection requirements for works of applied art.

Andreas Reichlin, as the author of the Feuerring, had filed suit for injunctive relief and damages against an imitator and the Commercial Court of the Canton of Aargau as court of first instance confirmed copyright protection of the Feuerring. With judgment of 3 August 2021 the court prohibited the distribution of various imitations, after specialist courts in Germany had already made corresponding decisions under German law.

On Appeal the Federal Supreme Court confirmed the decision of the lower court granting copyright protection for the Feuerring as a work of applied art. With its judgement, the Federal Court rejected the defendant’s objections that the Feuerring could not be granted copyright protection because of its “banality”, an allegedly insufficient distinction to prior art and because of its “technicality”.

The Federal Supreme Court stressed the Feuerring as being characterized by its simplicity of design, but at the same time clearly standing out artistically in its overall impression from prior art in the field of barbecue grills. The Federal Supreme Court underlined, that the Feuerring does not only represents appealing design, but is perceived as something new and unique compared to previously known shapes.

The Federal Supreme Court refers as further evidence for originality of the Feuerring to the surprise effect resulting from the fact that it is not recognizable at first glance as a barbecue grill. A neutral observer would not initially recognize the Feuerring as a barbecue grill, but as an artistic object, which only reveals itself as a barbecue grill upon closer inspection.

In the context of prior art, the Federal Supreme Court supports the first instance court’s finding that the intended purpose of the objects of comparison are only relevant if they are proven also beeing barbecue grills. The relevant prior art differed clearly from the overall impression of the Feuerring that stands out sufficiently to establish originality under Swiss copyright law.

The Federal Supreme Court also rejected the defendant’s objection that the shape of the Feuerring was dictated by technical function. Although the simultaneously existing patents with technical improvements in the Feuerring’s interior could also influence its shape, but the decisive factor was if such invention could not also be implemented differently, for which the courts did not see any indication.

Regarding the scope of protection resulting from copyright law, the Federal Supreme Court clarified that the scope of protection depends on the author’s creative freedom when creating the work.

The ruling shows that also decent designed utility objects can be protected by copyright as works of applied art. With its decision, the Swiss Federal Supreme Court converges to the trend in the European Union with a reasonable threshold of originality in relation to copyright protection for works of applied art. When elaborating a protection strategy, it is worthwhile having a look in other jurisdictions, especially those of the European Union, where the European Court of Justice in its most recent judgments required for a copyright protected work solely that the author has made free creative choices.

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