CJEU rules on whether the “distribution right” includes advertising

Who: Dimensione Direct Sales Srl, Michele Labianca v Knoll International SpA

Where: The Court of Justice European Union (CJEU)

When: 13 May 2015

Law stated as at: 2 June 2015

What happened:

The Knoll group manufactures and sells high-end furniture worldwide in which it has copyright. Dimensione distributes designer furniture for sale in Europe via its website.

It was alleged by Knoll that furniture offered by Dimensione were imitation or counterfeit versions of Knoll’s copyright protected designs. Knoll brought an action in Germany seeking an injunction against Dimensione prohibiting them from offering certain pieces of furniture for sale in Germany.

Article 4(1), the distribution right, of Directive 2001/29 states that:

” Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.”

The German Court decided to stay the proceedings and to make a reference of the following questions to the CJEU on the interpretation of Article 4(1) of Directive 2001/29.

        1. Does the distribution right include the right to offer the original or copies of the work to the public for sale? If so,
        2. does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures?
        3. Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the advertising offer?

The CJEU considered previous CJEU decisions (Donner- C-5/11 and Blomqvist C-98/13) and held that EU legislation must be interpreted consistently with international law and that a non-binding advertisement should therefore be considered a “distribution to the public”. It followed therefore that it was irrelevant whether or not the advertisement in question resulted in a sale of the work.

Why this matters: This decision favours the copyright holder by extending the scope of the right holder’s distribution right. Advertisers must be aware that any copyright protected works advertised must be with the consent of the copyright holder.

Recent contributors

Sign up to our newsletter