by CEO Henrik Lübker, Design denmark


Denmark has a proud design legacy, but I am not sure Designmuseum Denmark would have a collection full of Danish classics if the creators, back in the day, were operating in the globalized market we see today, where big retail chains are copying left and right in what seems like a deliberate business strategy.

It is an unequal battle!

In the case of Anne Black vs Netto, Netto risks just a tiny bump in the fender, and Anne Black risks bankruptcy. 

But more is at stake than Anne’s business. Taking it to the Supreme Court, the case will set precedence and answer the question of whether Denmark is a country that fosters and protects innovation and creativity or a copy country where copycats are almost free to capitalize on others’ creative endeavours. 

We need a system ensuring that:

1. Compensation for IP violations is deterring.

2. Compensation covers the total loss incurred by the IP violation.

3. Compensation covers the brand damage incurred by the IP violation and copying of the trade dress.

A one-sided focus only on copyright leads to an assessment of damages that neither cover losses nor deter the infringer. In the Anne Black case, Netto profits from more than just the sales of the copied products. And Black has suffered damage beyond the individual copied products: Netto copied not only her products but also her look & feel, so they could present their cheap knock-offs as if they were hers. This way, her brand suffered significant damage.

Furthermore, the Courts are conservative in their damage estimations and awarded compensations, which benefits infringers tremendously.

In fact, Bugge Valentin, Anne Black’s lawyer, says they receive almost weekly enquiries from IP rights holders who feel that some big retail chains have copied their products. There are strong indications that infringement is a business strategy for some companies: they calculate that their copied products will sometimes end up in court or settlement but that the gain from copying outweighs the financial disadvantage of being caught with their fingers in the cookie jar. – You still usually have to give back significantly less than you have earned on the case.

The legal system is an unequal battle: the perpetrators often use their economic power in every possible way. They make the case as complicated as possible – demanding as many expensive reports and auditors’ statements as possible, threatening libel suits and much more – to pressure the other party to withdraw.

Unless there is a substantial change of course with the Anne Black case, what Netto does seems like a sound business practice. Business schools ought to therefore teach it as a valid business model – which only shows the absurdity of it all. 

So what we need is to fix a broken system. We need a system that protects creators and discourages copiers. 

Four options:

1. We can make the bed we lie in as comfortable as possible seeking forms of mitigation – for example by having a Designnævn.
2. We can try to influence the courts to a change their practice. The 2004 EU Directive on the enforcement of intellectual property rights allows for significantly different compensation practices. We will keep pushing for a changed practice or legislation if that fails.
3. We could strive to create a foundation to strengthen the side of the rightsholders by having the muscle to fight back.
4. And if everything else fails: Creators could move to a country holding design and design protection in higher esteem than Denmark.