Infringement Scotch & Soda down jacket – copyrights or EU design rights

Scotch & Soda sells down jackets since 2012. When Esprit launches a similar jacket in 2015, Scotch protests, claiming its copyrights (No European design was timely filed). Esprit stops the sale in the Netherlands and is willing to pay for the damages, but not for the whole European Union.

In Court, Esprit claims that the shape of the design is too trivial for protection by copyright. The judge disagrees. The jacket consists of several (commonplace) elements. The combination of these elements is sufficient to provide the jacket with a character of its own. The Esprit coat is almost an exact copy, making the same overall impression, and is therefore considered an infringement.
In Europe, copyright law is not yet harmonized. In the Dutch system Scotch & Soda is entitled to the copyrights, since it employs the designer, but in many other EU-countries such a provision does not exist. As a consequence, the claims for infraction of copyright are being rejected outside the Netherlands. It is a big shame that Scotch & Soda did not opt for protection by way of a registered EU-design. If that were the case, a judge would most likely have granted a prohibition and awarded damages for the whole of the European Union.


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