Harpun wins case against Knudsen Kilen about the design of mountings
18 October 2019
Harpun can still sell its mountings for the building in and refitting of windows. That is the result of the Maritime and Commercial High Court's decision on the matter on 9 September 2019.
On 1 October 2018, Knudsen Kilen A/S sued its competitor Harpun A/S claiming that Harpun cease the marketing and sale of four different mountings which, in Knudsen Kilen's opinion, were infringing imitations of Knudsen Kilen's similar products.
From 2005-2015, Knudsen Kilen’s four mountings for the fitting of window and door frames enjoyed protection as utility models. When this utility model protection expired, Harpun started manufacturing and selling four mountings which, undisputedly, are based on Knudsen Kilen's mountings.
Harpun maintained that Harpun was fulfilling a market requirement, and that Knudsen Kilen's products no longer enjoyed any protection after the expiry of the utility model. Harpun also claimed that Knudsen Kilen had not provided documentation showing that the shape of Knudsen Kilen's products involved any design-related choices. Finally, Harpun claimed that even if one assumed that Knudsen Kilen's products did enjoy protection, then Harpun's mountings would not infringe these, as they were significantly different in appearance and since their technical properties were better in several respects.
On 9 September 2019, the Maritime and Commercial High Court found in favour of Harpun. The court determined that Knudsen Kilen's mountings did not enjoy design protection under the Danish Marketing Practices Act, since the shape of the mountings was just the result of their technical and functional character, and since their construction involved no considerations in terms of design or aesthetics. Further, the court found that Harpun's marketing of its products in trade magazines (and otherwise) was neither misleading, aggressive nor improper.
The case is interesting because the Maritime and Commercial High Court confirms that it made no difference for the assessment that Knudsen Kilen could have made other design choices within the scope of the technical function when designing the mountings. The decisive factor for obtaining design protection for technical products is not whether it was possible to make design choices. The decisive factor is if design choices were indeed made.
Plesner assisted Harpun with the trial.
Click here to read the Maritime and Commercial High Court's decision
From 2005-2015, Knudsen Kilen’s four mountings for the fitting of window and door frames enjoyed protection as utility models. When this utility model protection expired, Harpun started manufacturing and selling four mountings which, undisputedly, are based on Knudsen Kilen's mountings.
Harpun maintained that Harpun was fulfilling a market requirement, and that Knudsen Kilen's products no longer enjoyed any protection after the expiry of the utility model. Harpun also claimed that Knudsen Kilen had not provided documentation showing that the shape of Knudsen Kilen's products involved any design-related choices. Finally, Harpun claimed that even if one assumed that Knudsen Kilen's products did enjoy protection, then Harpun's mountings would not infringe these, as they were significantly different in appearance and since their technical properties were better in several respects.
On 9 September 2019, the Maritime and Commercial High Court found in favour of Harpun. The court determined that Knudsen Kilen's mountings did not enjoy design protection under the Danish Marketing Practices Act, since the shape of the mountings was just the result of their technical and functional character, and since their construction involved no considerations in terms of design or aesthetics. Further, the court found that Harpun's marketing of its products in trade magazines (and otherwise) was neither misleading, aggressive nor improper.
The case is interesting because the Maritime and Commercial High Court confirms that it made no difference for the assessment that Knudsen Kilen could have made other design choices within the scope of the technical function when designing the mountings. The decisive factor for obtaining design protection for technical products is not whether it was possible to make design choices. The decisive factor is if design choices were indeed made.
Plesner assisted Harpun with the trial.
Click here to read the Maritime and Commercial High Court's decision
