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Europe: Slavish imitation not lightly assumed

A Dutch designer sued the famous Swedish furniture store Ikea for damages as a result of allegedly slavishly copying her design of a lamp. The claim was unsuccessful, as the court was not convinced that Ikea had knowingly copied the lamp. For the Dutch practice this means that the slavish imitation doctrine appears to have been further crystallised.

The lamp of the Dutch designer consisted of the shape of a huge ball of paper. This lamp was said to have been made public for the first time in 2010. In 2014, the Dutch designer found that Ikea was selling a similar lamp, likewise having the appearance of a big ball of paper, however for considerably lower prices. As a result, the Dutch designer sued Ikea before the District Court of Amsterdam, claiming that Ikea had slavishly copied her lamp design, which makes for an unlawful act. Ikea defended itself by stating and detailing the fact that it had designed the contested lamp by its own merits, without ever having seen the lamp of the Dutch designer. It was up to the court to decide whether or not it is relevant that the contested lamp was independently designed and created. For copyright, Dutch case law has proven that this distinction is indeed very relevant, as there is no copyright infringement if the contested object was not derived from the original work. For a slavish imitation claim, this has never been explicitly set as a criterion. The Amsterdam court now ruled that, within the frame of slavish imitation proceedings, if a defendant was unaware of a prior design, its design cannot be held as a slavish imitation, as this presupposes actual knowledge of the prior design. Thus, Ikea could continue selling its lamp.

While it seems obvious that a slavish imitation can apply in cases where the defendant has actually been aware of a prior design, it has hardly been explicitly recognised by Dutch courts so far. Defendants in general now have an interesting additional defence in their pocket. It will be interesting to see whether the decision will be appealed and whether the criterion will stand the test of higher courts.

Jurriaan Cleuver

V.O.
Carnegieplein 5, 2517 KJ
The Hague
The Netherlands
Tel: +31 70 416 67 11
Fax: +31 70 416 67 99

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