PHILIPS v Lidl – A Dispute About Continued Product Design Development

This essay is about a dispute in which the central copyright issue is whether Lidl is infringing on the copyright for a Philips shaver. The problems must be considered as problems of copyright protection from continued product design development and, in connection with this, protection against slavish imitation. Philips initiated proceedings against Lidl, principally arguing, briefly put, that a Silvercrest shaver designed by Lidl infringes on the copyright for – or is a slavish imitation of – Philips’ design for its ST3D shaver. In conformity with the District Court, the Court of Appeal dismissed the copyright claims, and meted out the same treatment to the claims alleging slavish imitation. I provided commentary on the Court of Appeal’s decision. (Grosheide, Kanttekeningen naar aanleiding van en bij Hof Den Haag 6 april 2021, ECLI:NL:GHDHA:2021:1371, IEF 20113 (Philips v Lidl). https://www.ie-forum.nl/artikelen/willem-grosheide-over-het-philips-lidl-arrest . Accessed 3 July 2023. See also Ringnalda, BIE 5:243–244; p. 247, Huydecoper, BIE 4:4, p. 4) In cassation the Advocate General issued his Opinion at the end of 2022. (Opinion of AG Van Peursem, AG Opinion no. 21/02827 dated 23 December 2022, ECLI:NL:PHR:2022:1239) Although the dispute will be adjudicated in accordance with Dutch law, there are other aspects of the dispute that may be of more general interest. (See, in this context, the following finding from the judgment: “4.16. The ruling above is based on Dutch copyright law. Partly in light of the fact that copyright law has been harmonised to a significant degree, the result is the same as it would be were the Court of Appeal to review the cross-border claims against Lidl Nederland in the context of the applicable national laws in the other countries to which those claims pertain (France, Belgium, Luxembourg, Germany, Austria, Switzerland, the United Kingdom, Portugal and Poland). Philips has also not asserted that those countries apply a lower threshold than the Netherlands in the context of establishing copyright protection.”) In the meantime, the DSC issued a judgment last year; see the addition in section 5