Case No. IP-2022-000001

26.I will need to return to the Defendant’s strike out case in more detail once I have considered the law on “works of artistic craftsmanship”, but, for present purposes, it is useful to set out counsel for the Defendant’s helpful summary.27.First, he argued that there are currently several unresolved points of law in this area:i)ii)Whether the leading House of Lords authority on works of artistic craftsmanship, George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64, conflicts with two Court of Justice decisions handed down prior to the UK’s exit from the EU: Cofemel-Sociedade de Vestuário SA v G-Star Raw CV (C-683/17; [2020] ECDR 9 and SI and another v Chedech/Get2Get (C-833/18: EU:C:2020:461; [2020] Bus LR 1619) (Brompton); andiii)Whether a recent decision of HHJ Hacon in this Court which discusses the two issues above (Response Clothing Ltd v Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC); [2020] ECC 16) was correctly decided.28.Counsel for the Defendant accepted that this Court is bound by Hensher, Cofemel and Brompton, but submitted that, whilst the Court of Appeal is bound by Hensher, it is able to depart from Cofemel and Brompton. However, he submitted that it was not necessary for me to resolve the apparent inconsistency as the WaterRower would fail under the test set out by the House of Lords in Hensher, and also under the Court of Justice’s test in Cofemel/Brompton.29.In relation to Hensher, he submitted first that, “on any view” of their Lordships five separate speeches, the WaterRower is not artistic – it has aesthetic appeal, but that is not enough. Second under Hensher, he submitted that the WaterRower fails for not being a work of craftsmanship – the WaterRower is an invention, but it is, he said, “totally technical”, with some “design choice”, but no skill of a craftsman. Third, he urged on me the explanation of Hensher set out in The Modern Law of Copyright (also known as Laddie, Prescott and Vitoria) (Fifth Edition, LexisNexis), submitting that without artistry and without craftsmanship, there could not be the “interplay” expected of a work of artistic craftsmanship, and that therefore, the Claimant would fail. With the WaterRower, he said, all three requirements are missing. Finally, the Defendant propounded its own test, and said that on its pleaded case, the Claimant also failed to meet that test. 30.The Defendant further submitted that the WaterRower clearly fails the Court of Justice’s tests set out in Cofemel and Brompton because the creation of the WaterRower was mainly based on technical considerations – such that the only free choices left to Mr Duke are the choice of wood – which is insufficient to make the WaterRower a work of artistic craftsmanship. 31.Thus, he submitted, I should “grasp the nettle” and strike out the claim, on the basis that nothing further will come out at trial to “move the needle”.