J. Nørgaard A/S' T-shirt "NØRGAARD PÅ STRØGET NO. 101"

Date 21 dec. 2011
Download PDF version PDF

 

On the 26th of October 2011, the Danish Supreme Court gave judgement regarding a previously issued prohibitory injunction by J. Nørgaard against Rebecca Mode for a violation of copyrights and product promotion of the T-shirt “NØRGAARD PÅ STRØGET NO. 101” (hereafter “No. 101”).


The case in brief

Rebecca Mode had sold a T-shirt “Heart Beat Style Drop Needle” (hereafter “Heart Beat”) which significantly resembles J. Nørgaard’s T-shirt, No. 101.

 

The Legal basis

Section 1 of the Copyright Act states that “The person creating a literary or artistic work shall have copyright thereto, be it expressed in writing or in speech as a fictional or a descriptive representation, or whether it be a musical or dramatic work, cinematographic or photographic work, or a work of fine art, architecture, applied art, or expressed in some other manner.”

 

Section 1 of the Copyright Act, in accordance with the Act’s Section 2, gives the author “the exclusive right to control the work by reproducing it and by making it available to the public whether in the original or in an amended form


Additionally, a general principle applies in accordance with Section 1 of the Danish Marketing Practices Act, which states that a person engaged in commerce or industry “shall exercise good marketing practice with reference to consumers, other traders and public interests.”

 

The Maritime and Commercial Court’s decision

The Maritime and Commercial Court’s dissenting judgement stated that No. 101 was not protected by the Danish Copyright Act, seeing as J. Nørgaard had not proved that the terms of Section 1 were fulfilled. The court gave weight to originality and artistic achievement as a basis that should be present before millinery can be protected by the Danish Copyright Act.

 

In the Maritime and Commercial Court’s opinion regarding whether or not Rebecca Mode had violated the Danish Marketing Practices Act, the court emphasised that No. 101 was a well-known design and therefore had a strong market identity and a well-established market position. The fact that there are minor differences in the design of Heart Beat compared to No. 101 did not counteract that, seeing as a comparison between the T-shirt models resulted in a uniform general impression.


On this ground, the court found that the marketing of Heart Beat was a violation of the Danish Marketing Practices Act. As a consequence of this fact, Rebecca Mode was ordered to pay damages to J. Nørgaard. Rebecca Mode was prohibited from manufacturing, producing, marketing, or in other way transferring Heart Beat.

 

The Supreme Court’s decision

The Supreme Court decided that by marketing Heart Beat, Rebecca Mode had not violated Section 1 and 2 of the Danish Copyright Act or Section 1 of the Danish Marketing Practices Act.


With regards to the question of copyright, the court found that No. 101 was not protected by law, since the T-shirt consisted of known designs and elements and therefore did not fulfil the originality requirement.

 

With regards to whether the case constituted a violation under the Danish Marketing Practices Act, the court weighted previous case law, according to which only slavish imitations constitute a violation of the act. Since Heart Beat differentiated from No. 101 in several ways, including draping, fabric and fitting, the court found that Heart Beat was not a slavish imitation of No. 101.


On this ground the court rejected that No. 101 had been infringed, despite of the similarities. Rebecca Mode was acquitted. The previous prohibitive injunction was reversed, and J. Nørgaard was ordered to pay damages for Rebecca Mode’s losses and injury to Rebecca Mode’s reputation.

 

Future implications

The judgement underlines a very firm practice that especially high demands are made with regards to originality in the fashion sector. Therefore, the fashion industry must resign itself to the fact that there is still a wide potential for being inspired by the creations of others.


 

If you have any questions or require additional information on the decision, please contact Attorney Christoffer Galbo (cga@mwblaw.dk) or Attorney Henrik Syskind Pedersen (hsp@mwblaw.dk)

 

The above does not constitute legal counseling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence aft a reader’s use of the above as a basis decisions or considerations.