©-LAW

A Brompton Bicycle bike (top) and its alleged counterfeit (bottom) in the background national proceedings Since its seminal ruling  Infopaq  nearly 11 years ago  [Kat-celebration  here ] , the Court of Justice of the European Union (CJEU) has been contributing fundamentally to both shaping and placing the building blocks of copyright protection in the EU.  Through a string of decisions (the most important being  Infopaq ,  BSA ,  FAPL ,  Painer ,  Football Dataco ,  SAS ,  Levola Hengelo , and  Cofemel ), the Court has answered the most basic and relevant question:  When does copyright protection arise? Today, the CJEU has issued  yet another ruling  contributing to this very debate. It did so in the context of a referral from Belgium -  Brompton Bicycle , C-833/18  - concerning copyright protection of functional shapes (in the background proceedings, it is the shape of Brompto...

Is a functional shape eligible for copyright protection under the  InfoSoc Directive ? This, in a nutshell, is the intriguing issue that the Court of Justice of the European Union (CJEU) has been asked to address in  Brompton Bicycle , C-833/18 . As readers might guess, the shape at issue in this case is Brompton's iconic foldable bike, originally created in 1975 and sold in its current form since 1987: This morning, Advocate General (AG) Campos Sánchez-Bordona issued his  Opinion . He advised the Court to rule that, if the shape is  exclusively  dictated by the technical function of the relevant product, then no copyright subsists in it.  Whilst this conclusion appears reasonable and in line with existing CJEU case law, including - most recently - the  Cofemel  decision  [ here ; for a recent application, see  here ] , the Opinion appears to go a bit astray from that, at least in one notable respect (read on)....