The verdict
Intellectual Property Rights
March 22nd 2023
Today at noon, the verdict was in! Salling Group and Roland A/S must compensate the design company Anne Black ApS DKK 1,000,000.
Thus, it was established that Salling Group/Netto and Roland had infringed Anne Black’s copyright and violated the Danish Marketing Practices Act back in 2015. The Supreme Court agrees with the reasons stated by the High Court that Anne Black’s hanging pot “Grow” is protected under section 1(1) of the Danish Copyright Act and that all three products (“Grow,” “Bloom,” and “Contain”) are protected under section 3 of the Danish Marketing Practices Act.
Expert opinion is decisive evidence
Following expert witness Anne Qvist’s answers to several questions, the Supreme Court assumes that the hanging pot, vase, and lidded jar from Ronald and Salling Group essentially have the same design expression as Anne Black’s three designs and that it is very likely that the consumer will be able to confuse Anne Black’s designs with Ronald and Salling Group’s corresponding products. Against this background and for the reasons stated by the High Court, the Supreme Court finds that the three products from Ronald and Salling Group are such close imitations of Anne Black’s products that there is an infringement of Anne Black’s rights under section 1(1) of the Danish Copyright Act as regards the hammock and an infringement under section 3(1) of the Danish Marketing Practices Act as regards all three products.
The financial compensation
Under Section 83(1) of the Copyright Act, a right holder is entitled to financial compensation if the infringement has been committed intentionally or negligently. The financial compensation includes inter alia compensation to the injured party for the damage caused by the infringement. In determining the amount of compensation, paragraph 2 of the provision states that an account must be taken, inter alia, of the injured party’s loss of profit and the infringer’s unjustified profit. According to Section 24(2) of the Marketing Control Act, acts contrary to the Act are actionable in damages in accordance with the general rules of Danish law on damages. If the infringement has been committed intentionally or negligently, the person who exploits another’s right in breach of the law must pay reasonable compensation, cf. Section 24(3).
For the reasons stated by the High Court, the Supreme Court agrees that Ronald and Salling Group’s infringement of Anne Black’s rights under the Copyright Act and the Marketing Control Act can be imputed to them as at least grossly negligent. Ronald and Salling Group must therefore pay compensation for the loss suffered by Anne Black as a result of the infringement.
The basis for reduced claims
The Supreme Court finds that when determining the amount of compensation, it must be considered that, depending on the nature and seriousness of Ronald’s and Salling Group’s infringement of Anne Black’s rights, there is a basis for relaxing the requirements for proof of the amount of the loss. Anne Black has submitted statements showing a significant drop in turnover in the period after the infringement. In his answer to questions, the expert witness Torsten Ringberg has stated, inter alia, that Anne Black’s brand has been diluted as a result of Ronald and Salling Group’s sale of the imitations in question in Netto stores at a very low price, that this could certainly also create the perception that the brand was being phased out, and that future sales to a group of sophisticated customers with purchasing power would thus be lost. The expert has also stated that it is obvious, but not unequivocal, to conclude that Netto’s special offers contributed to the significant change in the sale of Anne Black’s products.
Against the stated background, the Supreme Court finds that it must be assumed that a significant part of Anne Black’s decline in turnover is due to market disruption and damage to Anne Black’s brand due to the infringement. The Supreme Court then found that the damages that Ronald and Salling Group must pay to Anne Black can be estimated at DKK 1,000,000.