Wagenfeld lamp cheaper abroad?

Design classics are always extremely popular. This is also one of the main reasons for the numerous copies that can ultimately be purchased as design bargains. However, design classics enjoy copyright protection, so the supposedly inexpensive bargains are typically counterfeits, as in the case of the Wagenfeld lamp.

Wilhelm Wagenfeld, the industrial designer who died in 1990 and one of the most significant product designers of the Bauhaus movement that emerged in Weimar and Dessau, became world-renowned for his Wagenfeld lamp. To this day, the lamp remains one of the most popular design objects.

For the Italian supplier Dimensione, this was apparently reason enough to bring inexpensive imitations of the world-famous lamp onto the market and also distribute them in Germany. Under Italian law, the distribution did not constitute a copyright infringement, but under applicable German copyright law it did.

After Dimensione committed itself to the holder of the exclusive exploitation rights resident in Germany, inter alia to refrain from distributing imitations of the Wagenfeld lamp in Germany and advertising therefor, direct distribution to Germany was discontinued. Subsequently, Dimensione advertised on a German-language website as well as in German print media in such a manner that German customers could acquire the lamps through transfer of ownership in Italy. According to the advertising message, customers could, after transfer of ownership in Italy, collect the goods at Dimensione's premises in Bologna or have them delivered to Germany by a transport company commissioned specifically for this purpose. The rights holder saw this as a copyright-infringing public offering and brought an action. After the rights holder was unsuccessful in the first two instances, the Federal Court of Justice (BGH) decided in her favour.

On the decision of the Federal Court of Justice (BGH)

The Federal Court of Justice (BGH) ordered Dimensione by judgment of 15.02.2007 (I ZR 114/04) to cease offering imitations of the Wagenfeld lamp. Unlike the lower courts, the Federal Court of Justice (BGH) proceeded on the assumption that even in cases where the public is called upon domestically to purchase the offered goods abroad, there is a copyright-infringing offering. The offering within the meaning of the Copyright Act must be understood in the economic sense and does not coincide with the legal concept of an offer of contract. Therefore, advertising measures by which, as in the present dispute, the public is called upon to purchase the advertised copies of a work also constitute an offering to the public. In this regard, the Federal Court of Justice (BGH) made clear that copyright-infringing offering also exists where the public is called upon domestically to purchase abroad, where the sale does not constitute a copyright infringement. That the Wagenfeld lamp enjoys copyright protection at least in Germany was undisputed between the parties.

Conclusion

Even if design classics do not enjoy copyright protection abroad, advertising for distribution abroad – even if it is European foreign territory – also constitutes a copyright-infringing offering and gives rise to injunctive relief and damages claims on the part of the author or rights holder.