Belgium: Brussels Enterprise Court denies copyright protection of feather-style bracelet design
On 21 January 2021, the Brussels Enterprise Court dismissed a claim bought by the French company OHARA SAS and jewellery designer Philippe Audibert against the Antwerp based company TAWO VOF and its founders for alleged infringement of the copyright in a feather-style bracelet design. The Court held in particular that the plaintiffs’ feather-style bracelet design did not meet the requirement of originality. In addition, the Court granted TAWO’s counterclaims for frivolous lawsuit and trade disparagement.
The French company OHARA SAS commercializes jewellery and fashion accessories including a feather-style bracelet named the ‘AHE design’ designed by Philippe Audibert in the spring of 2015. TAWO is a Belgian company founded in 2018 that designs and sells hand-made silver accessories for men, including a bracelet entitled the ‘Feather Cuff’. In light of the perceived similarities between both bracelets, OHARA and Audibert sent a cease-and-desist letter to TAWO and its founders, and to three of its B2B-customers, claiming infringement of their copyright in the ‘AHE design’. Following this notice, TAWO’s B2B-customers discontinued the sale of TAWO’s ‘Feather Cuff’ bracelet. TAWO also decided to cease temporarily the sale of its ‘Feather Cuff’ bracelet. On 19 December 2019, OHARA and Audibert summoned TAWO and its founders for infringement of their alleged copyright in the ‘AHE design’.
The Court applied the case-law of the European Court of Justice in Infopaq, Painer and Dataco, and ruled that while jewellery designs, in principle, can qualify for copyright protection, the author must be able to prove that his alleged work of authorship, in this case the ‘AHE design’, is his own intellectual creation reflecting his personality and expressing his free and creative choices. According to the Court, OHARA and Audibert had failed to provide such proof. The Court made clear that even though copyright law has a broad scope of application, this is not a free pass and the ‘originality’ requirement must still be met. The Court specified that it is not enough to combine non-original elements to create an original work; the combination itself must also be original.