March 29th 2023

Last Wednesday, the supreme court ruled in favor of Anne Black in the seven-year-long dispute against Salling Group / Roland.

We asked Anders Valentin from Bugge Valentin about a statement on the verdict after having represented Anne Black in the supreme court:

It is extremely important for future design and copyright infringement cases that the Supreme Court not only acknowledges that minimalistic design may enjoy the extended copyright protection but equally important the Supreme Court, for the first time has eased the requirements of the burden of proof that the designer must meet to establish an economic loss.

We have also had time to dive into the verdict, and here are our takeaways on the possible learnings and impacts from the ruling.

1. This is about more than IP Rights

In Anne Black’s and many other cases, compensation is more complicated than merely estimating how much the infringer earned from copying a specific artefact.

When a designer’s product is copied, it often has just as much to do with the brand of the designer as it has to do with the individual product. For example, copying the Gucci handbag has less to do with the particular handbag design and more to do with the brand in general – and this is the same for designers at large. The damage as well goes well beyond the copied product. In the case of Anne Black, she saw a significant decrease in sales after Netto copied her brand and presented it as a discount offer. 

But this requires lawyers that have a broader set of competencies than mere IP legislation. They need to understand branding, marketing law, and, not least, the intricate details of economic aspects related not solely to the copied artefact but to the whole business.

In the Anne Black case, the defence contested the estimations for the loss incurred. Therefore the lawyer for Anne Black was granted permission to do an economic review by the supreme court – but ultimately failed to do this.

When Bugge Valentin took over the case in the 11th hour, they were left with a case where the most crucial aspect – the incurred loss of profit – hadn’t been proven. And without them having enough time to do an economic review before the trial.

2. Compensation with a lessened burden of proof (a massive win for designers in the future)

The supreme court found Salling Group’s violations of IP Rights and marketing law so severe that they lessened the burden of proof.

Even though there hadn’t been an economic review – and even though profit loss and general brand damage are notoriously tough to estimate – the supreme court ruling shows that even without delivering hard evidence of profit loss, there is still a right to compensation.

For designers in the future, this ruling is a massive win for designers in both brand copying, like in the case of Anne Black, and innovation copying, where copying thwarts the opportunity for future sales because the innovative aspects of a product are copied in the early days of the product (before it reaches full market potential).

3. Lack of a clear description of how to calculate the size of compensation

The supreme court ruling didn’t tell how they concluded the size of compensation. This means that we will still see compensations differ quite a lot, and unfortunately, this will lead to longer infights in the court systems.

In all fairness, they probably didn’t have any other options since they needed the economic review to make a proper model for calculating loss incurred and compensation. In this regard, the verdict (and sum of compensation) is the absolute best we could hope for. But it is a terrible shame that the lack of the economic review blocked the opportunity for the supreme court to set a new compensation s

Conclusions

 1. The lessened burden of proof for loss incurred is a massive win for designers. This will likely lead to more significant compensations in the future.

2. We need lawyers with a broader understanding of brand and business aspects as well as an understanding of IP Rights instead of a deep specialization solely in IP rights.

3. It is still an uphill struggle for designers, and year-long fights in the court system will still be the norm if designers want to protect their brand and product.