In a recent case, the Court of Justice of the European Union (CJEU) considered whether a functional shape is precluded from copyright protection. The case was referred from the Commercial Court of Liège (Belgium) (C-833/18).


The original case before the Commercial Court of Liège concerned a claim for copyright infringement brought by an English company, Brompton Bicycle Ltd (Brompton). Since 1987, Brompton has marketed and sold folding bicycles. The Brompton Bicycle, which was protected by a patent until 1999, has the distinct feature of having three different positions: (i) a folded position; (ii) an unfolded position; and (iii) a stand-by position enabling it to stay balanced on the ground.

When a South Korean company, Get2Get, started marketing a bicycle that could also be folded into the same three positions as the Brompton Bicycle, Brompton brought a claim for copyright infringement. In its defence, Get2Get claimed that the shape of the Brompton Bicycle could not be protected by copyright law because its appearance is dictated by the technical solution sought, which is to ensure that the bicycle can be folded into three different positions.

The Commercial Court of Liège decided that although shapes necessary to obtain a technical result are excluded from copyright protection, the fact remains that doubt arises when such a result can be obtained by means of other shapes. The Court therefore made the decision to stay the proceedings, and refer the case to the CJEU.

CJEU Referral

The CJEU was asked to rule on whether Articles 2 to 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (the “Infosoc Directive“) must be interpreted as meaning that the copyright protection provided for therein applies to a product whose shape is, at least in part, necessary to obtain a technical result. Articles 2 to 4 of the Infosoc Directive determine the exclusive rights of authors to reproduce, communicate and distribute their works, and Article 5 sets out the exceptions and limitations to those exclusive rights.

The Commercial Court of Liège also asked the CJEU to confirm whether certain criteria must be taken into account when assessing whether a shape is necessary to achieve a technical result, namely:

  1. The existence of other possible shapes which allow the same technical result to be achieved;
  2. The effectiveness of the shape in achieving that result;
  3. The intention of the alleged infringer to achieve that result; and
  4. The existence of an earlier, now expired, patent on the process for achieving the technical result sought.

The CJEU Decision

In its judgment, handed down on 11 June 2020, the CJEU referred to its recent settled case law (namely the Cofemel decision from 12 September 2019 (C-683/17)) on what constitutes a ‘work’ for the purposes of copyright law. In that case, the CJEU held that the concept of a ‘work’ has two elements: (i) it entails an original subject matter which is the author’s own creation; and (ii) it requires the expression of that creation.

In relation to the first element, the CJEU reiterated that it is both sufficient and necessary that the subject matter reflects the personality of its author as an expression of his/her free and creative choices in order for it to be capable of being regarded as original. In other words, if the appearance of a shape (to use the type of ‘work’ in the Brompton case) has been solely dictated by its technical function (which has left no room for creative freedom), it cannot be regarded as possessing the originality required for it to constitute a ‘work’ under copyright law and so subsequently cannot be eligible for copyright protection.

The CJEU found that a shape that satisfies the condition of originality, but whose appearance is dictated by technical consideration, may still be eligible for copyright protection provided that its being so dictated has not prevented the author from reflecting his personality in the subject matter, as an expression of free and creative choices.

The CJEU noted that the shape of the Brompton Bicycle appears necessary to obtain the specific technical result of being folded into three positions, one of which allows it to stand balanced on the ground. However, the CJEU held that it is for the referring court to ascertain, whether, in spite of the functional shape, that bicycle is an original work resulting from intellectual creation. In the CJEU’s view, that cannot be the case “where the realisation of a subject matter has been dictated by technical considerations, rules or other constraints which have left no room for creative freedom or room so limited that the idea and its expression become indissociable“.

In addressing the other questions posed to it by the Commercial Court of Liège, the CJEU explained that the existence of other possible shapes which can achieve the same technical result is not decisive in assessing the factors which influenced the choice made by the creator. It also said that the intention of the alleged infringer is irrelevant when assessing whether something is protected by copyright.

The CJEU further held that the effectiveness of the shape in achieving the result and the existence of an earlier, now expired patent should not prevent copyright protection from arising. However, that should only be taken into account when assessing whether a shape is necessary to achieve a technical result insofar as the existence of that patent makes it possible to reveal what was taken into consideration by the creator when choosing the shape of the Brompton Bicycle.


The CJEU’s ruling in this case is helpful in confirming its settled case law that functional shapes, such as the Brompton Bicycle, can still benefit from copyright protection, and that the requirement for the shape to be original must be applied in the same manner as to non-functional shapes.

However, the CJEU emphasised in its decision that, in cases like these, in assessing whether something is original and thus protected by copyright, a court needs to take into account all relevant aspects of the assessment of copyright as they existed at the time the subject matter was designed, irrespective of external and subsequent factors to the creation of the product.

This decision is also a useful reminder that each intellectual property (IP) right (be that patents, copyright, designs or trademarks) has its own eligibility requirements and that any analysis needs to be performed on the basis of each IP right.