Recht·IE Forum·4 jun

Is US design no longer protected in the EU?

It is possible that American designs are no longer protected by copyright in the EU. This is due to the so-called ‘term comparison rule’. This issue has resurfaced because a German court ruled in a default judgement that the shape of the Fender Stratocaster, designed in 1954, is protected by copyright in the EU. In 2024, the Court of Justice of the EU ruled that American designs in the EU may not be excluded from copyright protection. This occurred in the Kwantum/Vitra case concerning a Vitra dining chair designed by Charles and Ray Eames and copied by Kwantum. The reason for this decision was that European copyright law does not permit discrimination on the basis of origin. In the Kwantum/Vitra case, however, Kwantum had also invoked the so-called ‘term comparison’. This is the rule that if copyright has expired in the country of origin, it also expires in the country where protection is sought. This rule is set out in Section 42 of the Dutch Copyright Act and in Article 7(8) of the Berne Convention, but also in Article 7(1) of the Term of Protection Directive 2006/116/EC. This means that this ‘substantive reciprocity rule’ is not only permitted but is even mandatory under EU law. In 2020, the Court of Appeal in The Hague ruled that it is ‘justifiable’ that, on the basis of this comparison of terms, ‘the term of protection may be reduced to the minimum required by the Berne Convention’ of 25 years after creation. In that case, the copyright on the dining chair produced in 1948 would have expired in 1973’. However, the Court of Appeal in The Hague ruled, without giving any reasons: ‘That approach is not, however, applicable law’.