In a further recent expansion of EU copyright law, Jaguar Land Rover has been awarded damages by a Court in Sweden for copyright infringement of its C-Type sports car against a company manufacturing replica cars. In the case of Jaguar Land Rover v Creare Form AB et al, the Swedish Patent and Market Court held that copyright in the external shape of the C-Type Jaguar car was infringed by replicas manufactured by a third party.
Although decided by a Swedish Court, arguably this decision represents the continued expansion of EU copyright law. Indeed, as the Swedish Court expressly found that copyright can exist in the external shape of a sports car, this decision will be welcomed by those operating in the manufacturing and automotive industries. This is because, on foot of this decision, copyright may now provide IP protection for their products where trade mark protection is not available. For example, the decision can be contrasted with the difficulties previously faced by Jaguar Land Rover when it attempted to register the shapes of versions of the Land Rover Defender as trade marks, and discovered that it is not possible to do so where a product shape is exclusively dictated by its technical function.
Similarly, the decision can be contrasted with the UK Supreme Court decision in Lucasfilm v Ainsworth. In that case, it was held that the design of the famous Star Wars Stormtrooper helmet did not qualify for copyright protection as it was functional in portraying a film character. As such, it is clear that while there was previously a reluctance on the part of the courts to facilitate a claim for copyright protection for objects which are functional in nature such as cars, helmets and bicycles, there is now a growing trend towards granting copyright protection for those types of goods, provided of course that the goods themselves sufficiently display their authors free and creative choices.
Jaguars C-Type sports car, the Jaguar XK120-C, is highly iconic. With its memorable cartoonish tubular frame and sleek design, the sports car was designed primarily for racing and to that end famously won the Le Mans 24 hours race in 1951. As an illustration of the value attributed to these cars, only 53 C-Type racers were built by Jaguar between 1951 and 1953, and unsurprisingly, they are highly priced in the current vintage car market.
The term of copyright
In 1951, works of ‘applied art’ enjoyed copyright protection for a ten year period in Sweden in accordance with the 1919 copyright legislation in force. Subsequently and to Jaguar’s advantage, a new Swedish Copyright Act entered into force in 1961 which immediately extended the term of protection for all protected works of applied art by a further ten years. As a result of that, the Jaguar C-Types term of protection was extended to 1971. In addition, in 1970 the Swedish Copyright Act was in turn amended to provide works of applied art a term of protection of 50 years after the creators death, which again extended the C-Types protection to 2020. In the interim, Sweden became a member of the EU and due to harmonised EU copyright laws, protection for works of applied art continue for 70 years after the creator’s death. The result of all of these legislative changes meant that Jaguar Land Rover successfully argued before the Court that the C-Type car model was protected as a work of applied art in Sweden in 2021, despite its creation in 1951.
Copyright in a car
In determining that the C-Type qualified for copyright protection, the Swedish Patent and Market Court placed great emphasis on the Jaguar cars “origin story”. In doing so, it relied heavily on the Court of Justice of the European Union (CJEU’s) former decisions in the cases of ‘Brompton Bicycle’ and ‘Cofomel’. In the Brompton Bicycle case, the CJEU held that when determining if copyright protection is applicable, originality is the sole requirement to be satisfied. Similarly, in the Cofomel case, which concerned copyright protection for garments, the CJEU confirmed that for copyright to arise, it is “both necessary and sufficient” that the subject matter at hand is original. This means that it is its authors own intellectual creation which results from that authors free and creative choices and reflects their personality.
In this case, the Swedish Court found that the practical constraints put on the original designer did not limit him to such an extent that the C-Type did not display many significant free and creative choices. In addition, despite a number of structural and legal changes in the Jaguar company’s ownership since 1951, the Court was satisfied that Jaguar Land Rover was the owner of the copyright in the C-Type today. The Swedish Court noted that this would be the position regardless of whether Swedish or UK copyright law was applied in the case.
This decision represents a win for Jaguar Land Rover and also serves as a reminder of the potential interplay and overlap in various intellectual property rights existing for the same objects. Ultimately, Jaguar Land Rover’s claims were granted, including its claims for destruction of the infringing replica cars. Moreover, the Defendants were ordered to pay reasonable compensation to Jaguar Land Rover, which was also awarded its legal costs in full.
The decision will therefore serve as a warning to replica car makers across Europe, and evidently it has the potential to have a profound impact on the automotive industry more widely. As the Defendants in this case have already lodged an appeal, it is likely that this dispute has not yet reached a conclusion.
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 PMT 15833-18