Background
18.The following facts were before me. I do not consider any of them to be contentious. 19.The Claimant is a company registered in England and Wales which sells exercise equipment, including the WaterRower. The WaterRower is a water resistance rowing machine. The WaterRower was designed by Mr John Duke between 1985 and 1987. Mr Duke is a citizen of the United States and a former rower, having been a member of the US National Team in 1975. Mr Duke has a Bachelor of Science degree from Yale and a Masters in Ocean Systems Management from MIT, which included a study of naval architecture. He has designed and built boats, including designing and building his own wooden one man shell for the “Head of the Charles” regatta in 1977. He has a life-long interest in various forms of art, crafting with wood, and artistic design. 20.The APoC set out Mr Duke’s inspiration for his design of the WaterRower, including the wooden shells created by George Pocock and George Sims, both well-known rowing equipment designers who crafted in wood. Mr Duke considers their shells to be “works of art”. He was also influenced by the works of US furniture maker Thomas Moser, the Arts and Crafts movement and the aesthetics of Shaker furniture design. In creating the WaterRower, Mr Duke’s aim was to recreate the sparse elegance of a Shaker design and to create a rowing machine in which the user has “a welcoming emotional connection, as they would with a piece of art or furniture”. 21.Early versions of the WaterRower were made from mahogany, but are now made from more sustainable woods. The evidence is that the WaterRower is “deliberately crafted in the same manner in which a cabinet maker would make a fine piece of furniture, and with consideration for the aesthetics of touch, including dipping in furniture maker’s oil rather than eg varnishing, so that the patina developed and the wood felt different to the user”.22.The initial WaterRower was hand-made by Mr Duke. Aspects of the WaterRower continue to be handmade. The processes used to make the WaterRower include inspection and selection of wood, manual staining, sanding and oiling of the wood, and manual assembly. Mr Duke presented his hand-made version to a public boat show in 1987 and received his first orders at that time.23.Mr Duke applied for a US patent for the WaterRower, and the patent application was in evidence before me. The patent expired some time ago. 24.The WaterRower has been recognised as an “iconic design” in the United Kingdom and the United States – I was taken to excerpts from publications by the Museum of Modern Art (MOMA), the Conran Shop and design magazines including Architectural Digest and Galerie. I do not need to set out those excerpts in detail but I return to them below – relevantly, the Defendant has (quite rightly) conceded that the WaterRower is aesthetically pleasing. The WaterRower has featured in magazines, newspapers and on television, including in GQ, Men’s Health, Playboy, Men’s Fitness and House of Cards. The WaterRower is on display in the Design Museum in London.25.The Defendant is a company incorporated under the laws of Hong Kong. Since at least November 2019, it has sold its TOPIOM rowing machine, including in the United Kingdom. The TOPIOM rowing machine is also a water resistance rowing machine. It is a replica of iteration 8 of the WaterRower and was copied from it. The Defendant advertises its TOPIOM machines on the amazon.co.uk website with the slogan “Beautiful Enough as Furniture”.
- David Stone (sitting as Deputy High Court Judge) :
- The Application
- The Law on Strike Out/Summary Judgment
- On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better
- However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction
- Background
- The Defendant’s Strike Out Case
- United Kingdom Law on Works of Artistic Craftsmanship
- The whole conception of artistic craftsmanship appears to me to be to produce things which are both useful and artistic in the belief that being artistic does not make them any less useful.
- EU Copyright Law
- Declaration
- Conclusion