Triumph for Tripp Trapp Chair: Design Is Revolutionary After All
Court of Appeal of The Hague, 30 June 2009,
Stokke/Fikszo
Background
Stokke has been marketing the Tripp Trapp highchair since 1972.
Together with the right holders Stokke ("Stokke") has
filed a legal action on grounds of the copyrights vested in the
Tripp Trapp chair against the trading of the Bambino highchair by
Fikszo. However, the Court considered that the Tripp Trapp design
was largely determined by technical conditions and the chosen
Scandinavian simple style. Because style and technically defined
elements are not protected under copyright law, the Court held that
the only protected element left was the inclined L shape of the
Tripp Trapp design. As a result, Stokke could neither take action
against the Bambino, nor against three other designs which Fikszo
was planning to introduce in the
Netherlands.
Design Protected Despite Technical Effect?
Unlike the Court, the Court of Appeal has considered that the
inclined position of the stands is not merely technically defined.
In this respect, the Court of Appeal has pointed out that the
exclusion of technical elements under copyright law refers only
to those elements that are necessary to obtain a
technical effect. If multiple forms of design having the same
technical effect can be used, it may well be that a
certain design is eligible for copyright protection, provided
that such design is sufficiently original.
Subsequently, the Court of Appeal has applied this test to the
Tripp Trapp design. Research that was submitted in the proceedings
established that Stokke had other forms of design at its disposal
to obtain the same technical effect (an adjustable chair with slot
system), for example by using vertical rather than inclined stands.
However, Stokke has chosen this specific design: inclined stands,
in which all elements of the chair (seat, back) viewed from
the side largely 'disappear' against the stands.
The fact that this design is partly dictated by practical and
technical conditions, such as stability, length, anatomy of the
child, does not influence the otherwise original character of the
design.
It is clear that the Court of Appeal is of the opinion -
unlike the Court - that not only (1) the L shape of the stands and
cross-latches are copyright-protected, but also (2)
the inclined stands in which all elements of the chair
are incorporated, so that they largely
'disappear' when viewed from the side.
Infringement Test: Scope of Protection
Bearing this in mind, the Court of Appeal then
compared the Tripp Trapp design to the Bambino and concluded that
in any case one of these two protected characteristics was copied:
the inclined stands, in which the elements are incorporated such
that they largely 'disappear' when viewed from the
side.
Bambino
Tripp Trapp
The test of the comparison of the 'overall impressions'
must be used in order to assess whether this copying is sufficient
to assume infringement. This test is generally used to assess
the similarity of works of applied art. The Court of Appeal recalls
that comparing the overall impressions is not the same as assessing
whether there is a likelihood of confusion. The latter test is
not required under copyright law.
However, the scope of protection of the work plays a role in the
assessment of the infringement. In this case, the
design has been awarded several prizes, and is even included
in the collection of a museum. Unlike the Court, the Court of
Appeal is therefore of the opinion that this is a revolutionary
design, highly original and even demonstrating a new
vision on the concept of a highchair. For this reason, the design
can count on a broad scope of protection.
Therefore, the Court of Appeal has held that the Bambino by (1)
copying the inclined stands in which seat and back are
incorporated (2) in combination with the A-shape of the lower
frame, in which the L shape of the Tripp Trapp chair is embodied,
shows a sufficient degree of similarity to the protected features
of the design of the Tripp Trapp chair.
No Room for Experiments in Proceedings
Incidentally, Fikszo had also claimed a declaratory
judgment (which was partly allowed by the Court) stating that four
prototypes, which it might introduce on the Dutch market, were not
infringing the design of the Tripp Trapp chair. However, the Court
of Appeal has denied this claim, because Fikszo failed to make
sufficiently plausible that these four designs will indeed (and in
the near future) be imported into the Netherlands. A civil action
is not meant to be used for such
'experiments'. However, for two of the four designs
Fikszo has been granted the opportunity at the next
hearing to make plausible that these designs have already been, or
will soon be introduced, on the Dutch market.
Copyright and Technology: What are the
Boundaries?
The rationale behind excluding technology from copyright protection
is twofold. First of all, copyright with its long duration (up to
seventy years after the maker's death) leads to an undesirable
monopolisation of technology. Further, copyright in principle
protects the personal bond between the maker and the work, whereas
a technical solution assumes there are objective standards.
In this judgment the Court of Appeal has acknowledged that in
objects of applied art, the function (technology) and the original
design are often intertwined. Is the design selected necessary
to achieve a certain technical effect, only objective choices
can be involved in making of such design. In that case there is
insufficient room for originality of design and personal
imprint of the maker, and the design must therefore do without
copyright protection. If other alternatives are available for the
same technical solution, the Court of Appeal rightly mentions in
this judgment that there may be room for creative
choices, if any, of the maker. According to the Court of
Appeal, this 'room' for creative choices has been
adequately used in the design of the Tripp Trapp chair.