Federal Court of Justice: Product Presentation at Trade Fair not always Copyright Infringement
Product presentations at a trade fair, conflicting with the copyright for works of applied art, do not necessarily result in infringement claims, as a recently published decision of the German Federal Court of Justice (Bundesgerichtshof, BGH) indicates (judgment of 23/2/2017 – I ZR 92/16 – Mart Stam Chair). In the case decided, the copyright of the cantilever chair by the Dutch architect and designer Mart Stam was asserted against a cantilever design presented at a furniture trade fair in Germany. However, the exhibitor explicitly marked the contested chair as prototype and indicated that its final product specifications had yet to be defined, before the chair would be available.
In the Federal Court’s opinion, such presentation is not sufficient for approving the required danger of an imminent copyright infringement in Germany concerning distribution rights. Indeed, according to the CJEU‘s interpretation of the fully harmonised exclusive right of distribution to the public (Art. 4 para. 1 Directive 2001/29/EC), the copyright holder is allowed to prevent an offer for sale or a targeted advertisement, even if it is not proven that such advertisement gave rise to the purchase in the EU. Insofar, it is required that the targeted advertisement invites consumers of a member state to purchase the advertised product in that particular member state (vgl. CJEU, judgment of 13/5/2015 – C-516/13 – Dimensione and Labianca/Knoll). However and according to the Federal Court, the mere product presentation at a trade fair in Germany does not necessarily mean that the exhibitor advertises the contested products towards visitors aiming for selling said products in Germany. In particular, if the exhibitor explicitly indicates that the presented product is not available for purchase, because he reserves the right to modify the final product specification, such presentation does not constitute a targeted advertisement for distribution.
With said decision, the Federal Court continues its judicature regarding IP infringements of trade fair presentations, according to which a ban of such presentations at trade fairs only comes into question, if there are clear indications that the product in its advertised form will be available for purchase in Germany (concerning supplemental protection against imitations, see: BGH, judgment of 23/10/2014 - I ZR 133/13 – biscuit sticks; concerning trademark infringements: BGH, judgment of 22/4/2010 – I ZR 17/05 – shape of a praline II).