The ingenious - once you have the hang of it - procedure for folding a Brompton bicycle may be up for grabs if the European Court of Justice goes along with an advocates’ opinion published this month. In Brompton Bicycle v Chedech the British company is claiming breach of copyright by a Korean maker of folding bicycles. While a patent protecting the bikes' three-stage folding mechanism has expired, the company is claiming copyright protection, which last for 70 years following the death of the author.
Brompton took action in a Belgian court to protect rights in designs such as the curved main frame tube, the position of the rear wheel in the 'stand-by' arrangement and the appearance of the wheels and folding handlebar in the folded position. The court referred the case to the CJEU for a preliminary ruling.
In an opinion to guide the court, advocate general Manuel Campos Sánchez-Bordona says that designs whose shape is dictated by technical considerations that do not leave room for the exercise of creative freedom are not eligible for copyright protection. If the shape was determined solely because of technical function, the fact that it could have been designed another way is irrelevant.
Advocate general opinions are generally, but not invariably, followed by the main court.
IP specialists described the development as a blow to Brompton. Giles Parsons, partner at City firm Browne Jacobson and a member of the Law Society’s IP Committee, said: 'If the CJEU follows this decision, it will be difficult for Brompton to succeed. However, the decision does leave the door open to courts finding greater copyright protection for functional products. For example, the UK Intellectual Property Office held in October last year that the shape of a Land-Rover was not necessary to obtain a technical result.'