Copyright and Trade Marks in relation to Shapes: two European Perspectives

Monika A. Górska, Ph.D, LL.M of Wardynski & Partners in Poland and Mark Kramer of Shoosmiths LLP in the UK discuss the broadening opportunities to use different IP rights such as copyright and trade marks in tandem with other rights to protect shapes from a European, Polish and UK stand point.

The purpose of this webinar was to consider the expanding opportunities within the EU to use different intellectual property rights to protect shapes. The webinar examined these issues from a UK, Polish and EU perspective.

In order to set the scene of these developments within the law the webinar first set out the IP rights traditionally used to protect shapes which incorporate elements of function – patents and designs. This included examining the limitations on design protection flowing from specifically functional elements. The webinar also discussed the specific national rights available within Poland and the UK.

Having provided this context the webinar investigated the hurdles to registering trade marks over shapes within the EU including discussing bottles, boots and bikes. This discussion also focussed on the difficulties and exclusions flowing from functionality and covered recent cases before the Court of Justice of the European Union, the UK and Polish courts.

Having touched on the options of unfair competition and passing off, the webinar then proceeds to summarise the possibility of overlaying the rights discussed above to extend the nature and duration of protection.

The webinar concluded by focussing upon the core issue of the extension of copyright into non-traditional spheres throughout the EU. This is a development in many ways anticipated by modern Polish jurisprudence but which shows a core change in the operation of copyright within the EU. However, the webinar discusses how this has been a development which the UK has been slow to adopt and which may never fully reach the UK due to Brexit.