The Danish Supreme Court issues new landmark decision on copyright protection of clothing

The Danish Supreme Court has delivered judgment in a case concerning Danish designer Ilse Jacobsen's RUB 1 rubber boot. This is the first time the Supreme Court has been in a position to consider the question of copyright in clothing since the Court of Justice of the European Union's ruling in the so-called Cofemel case.

In its decision of 10 June 2020, the Supreme Court found that Ilse Jacobsen's well-known RUB 1 rubber boot is not entitled to copyright protection. However, the rubber boot model is entitled to protection under the Danish Marketing Practices Act but in the specific case it was found that the other party's VRS rubber boot did not constitute an infringement under the Marketing Practices Act.

The case is of interest because it is the first time the Supreme Court has been able to apply the Court of Justice of the European Union's ruling in the so-called Cofemel case (C-683-17) of 12 September 2019.

Referring to the requirement for originality as described in the Infosoc Directive, and most recently in the Cofemel case, the Supreme Court established that "[...] under the circumstances clothing designs can and should be classified as works of applied art which are entitled to copyright protection." Due to Supreme Court's previous decisions, the question as to whether clothing can be entitled to protection by copyright at all has been raised several times in legal literature. It has now been confirmed that clothing can be entitled to such protection.

However, it is clear from the Supreme Court's other reasons that it may still be difficult to prove that a piece of clothing fulfils the requirement for originality under copyright law.

According to the Supreme Court it is thus "[...] not sufficient for the purpose of being classified as a work that the clothing designs in question create their own visual and distinctive effect from an aesthetic point of view - not even if such clothing designs are the result of designs and a manufacturing process recognised as being innovative within the world of fashion."

Nor has the Supreme Court attributed any importance to the fact that the experts "have stated that the creation of RUB 1 as a whole indicates creative skills expressing free and creative choices, and that RUB 1 expresses an independent creative effort". Instead, the Supreme Court finds, given that RUB 1 is a "fashion rubber boot", the design of which is basically inspired by other boots and riding boots, that RUB 1 does not fulfil the requirement for originality.

Read the Supreme Court's decision of 10 June 2020 in case BS‐7741/2019‐HJR (in Danish)

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