The Danish Maritime and Commercial Court has recently rendered a decision in a case regarding sale of infringing furniture designs from two British websites. The decision is interesting for practitioners as it explains which exact elements are added substantial weight, when defining which law is applicable to an online infringement.
When deciding whether sale of furniture designs identical to famous products from Arne Jacobsen and Poul Henningsen among others constitutes a copyright infringement, it can be of high significance whether Danish or UK law is applicable. As explained in this bloggers article in the latest edition of AWA Review, there is a difference of protection even though this will be reduced due to the approaching repeal of Section 52 of the UK Copyright Designs and Patents Act.
The two websites in question were www.interioraddict.co.uk and www.nlini.com. The first website was written in Danish and with a Danish speaking customer service. For those reasons alone, the court found Danish law applicable to the infringements. The latter website was originally also in Danish, but had since changed to an English version. However, as the court noted that (1) it is possible to order products to be delivered in Denmark, (2) reviews of the website and its products were available in Danish, and (3) the website had been advertised in Denmark, Danish law was also applicable to this site.
This reasoning confirms the principles of the Donner case (C-5/11) in which the European Court of Justice listed relevant factors when deciding the applicable law as choice of advertising material, choice of language and opportunities for foreign distribution. However, the Danish decision is interesting and helpful to right holders, as it confirms that these principles also apply to a website with a .co.uk domain name which is normally not seen as targeting foreign consumers. Consequently, this decision indicates that infringers cannot circumvent the requirements and protection given by Danish law simply by selling from a foreign domain address. A much welcome development for the many right holders of famous Danish design products.
When assessing the damage claim, the court gave detrimental effect to the fact that the defendants had not supplied any information as to the revenue or amount of products sold. Furthermore, and more interestingly, the court did find some degree of substitution for the less expensive products (despite these still being cheaper and marketed as replicas). Accordingly, the court found market disturbance and roughly estimated the total damage claim to be DKK 200,000 for each website.
Anders Michael Poulsen, Attorney at Law