The judgment in WaterRower v Liking (in which Jonathan Moss and Kendal Watkinson acted for the successful defendant) was much anticipated as it dealt with the ever difficult matter as to whether copyright subsists in good looking consumer goods (here, a rowing machine made largely in wood). The WaterRower rowing machine had been created in 1980s and indeed had been subject to the protection of a patent (now expired). The only relevant IPR was copyright protection which lasts 70 years after death and the designer (Mr Duke) was very much alive as he gave evidence at trial.

Guy Tritton gave a stimulating talk on the judgment at a hybrid meeting at the Inn Group for IP lawyers hosted at Mishcon de Reya to 80 people. In the judgment, the judge found that the water rowing machine which was conceded to have eye appeal and indeed that the prototype had been skilfully hand-crafted, nonetheless was not the work of an “artist-craftsman” and thus was not a work of “artistic craftsmanship” as required under s.4(1)(c) Copyright Designs & Patents Act 1988. This was notwithstanding that it would have been protected under EU copyright law (which on the facts of this case, was applicable as retained EU law). The judge found that notwithstanding the Marleasing principle, it was impossible to reconcile the requirement of “artistic craftsmanship” with EU copyright law.

With the Retained EU Law (Revocation and Reform) Act 2023 now in force which abolishes the principle of supremacy of EU law (on which the Marleasing principle is founded), one should expect greater divergence of UK and EU law. Indeed, the protection by copyright to the designs of everyday consumer and industrial products for 70 years after death of designer is not favoured in the UK as it upsets the delicate balance between registered and unregistered design protection (which last no more than 25 years and for which the WaterRower would have qualified) and copyright. Watch this space.