WaterRower (UK) Limited v Liking Limited (t/a Topiom)
| Court | Caribbean Court of Justice |
| Judge | CAMPBELL FORSYTH |
| Neutral Citation | [2024] EWHC 2806 (IPEC) |
| Date | 11 November 2024 |
| Year | 2024 |
| Counsel | Mr Jonathan Moss,Ms Kendal Watkinson,Ms Jacqueline Reid |
Neutral Citation Number: [2024] EWHC 2806 (IPEC)
Case No: IP-2022-000001
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice,
Rolls Building Fetter Lane, London, EC4A 1NL
Date: 11 N ov em be r 20 24
Before :
CAMPBELL FORSYTH
(sitting as a Deputy High Court Judge)
Between :
WATERROWER (UK) LIMITED
Claimant
-and-
LIKING LIMITED (T/A TOPIOM)
Defendant
------------------------------------------------------
Hearing dates: 24 and 25 July 2023
Further written submissions on 27 July 2023, 24, 28, 29, 30 October 2024 and 8 November 2024
APPROVED JUDGMENT
Ms Jacqueline Reid (instructed by Moore Commercial Law Limited) for the Claimant
Mr Jonathan Moss and Ms Kendal Watkinson (instructed by Gunnercooke LLP) for the Defendant
------------------------------------------------------
This judgment will be handed down remotely by circulation to the parties or their
representatives by email and release to The National Archives. A copy of the judgment in final
form as handed down should be available on The National Archives website shortly thereafter
1
but can otherwise be obtained on request by email to the Judicial Office
(press.enquiries@judiciary.uk).
Campbell Forsyth :
Introduction…………………………………………………………………………………………………….3
Pleading Issue………………………………………………………………………………………………….4
Argument about Prototype status in the case………………………………………………………….5
Assessment…………………………………………………………………………………………….8
Witnesses………………………………………………………………………………………………………9
The WaterRower machines and their creation………………………………………………………………..10
Identifying the Works………………………………………………………………………………………...13
The Prototype………………………………………………………………………………………...13
Other modifications to the different WaterRower versions………………………………………….16
Does copyright subsist in the Works?………………………………………………………………………...20
The Law………………………………………………………………………………………………………20
Legislative background……………………………………………………………………………....21
Is the UK bound by EU legislation such that it no longer has discretion to apply Article 2(7) of the
Berne Convention?
…………………………………………………………………………………...27
UK Law……………………………………………………...……………………………………….29
EU Law………………………………………………………………………………………………42
Conformity between EU and UK Law………………………………………………………………………..44
Are any of the Works original within the meaning of the InfoSoc Directive?……………………………….48
The Prototype………………………………………………………………………………………...48
Other modifications to the different WaterRower versions………………………………………….50
Are any of the Works works of artistic craftsmanship within the meaning of s.4(1)(c) CDPA?.....................52
The Prototype………………………………………………………………………………………...52
Other modifications to the different WaterRower versions………………………………………….55
Ownership…………………………………………………………………………………………………….56
Infringement…………………………………………………………………………………………………..56
Copying………………………………………………………………………………………………56
If the series 4 Version 8 model reproduces the Prototype is there indirect copying?..........................56
Counterclaim………………………………………………………………………………………………….58
Intervening decisions…………………………………………………………………………………………58
Equisafety Limited v Woof Wear Limited [2024] EWHC [2478] (IPEC)……………………………59
Kwantum Nederland and Kwantum België v Vitra Collections AG, case number C-227/23…..……59
Conclusion……………………………………………………………………………………………………60
2
Annex 1……………………………………………………………………………………………………….61
Annex 2……………………………………………………………………………………………………….70
Introduction
1.
The Claimant ("WaterRower Ltd") is a company registered in England & Wales
(WATERROWER (UK) Limited). Its business is a designer and retailer of exercise equipment,
including the water resistance rowing machines sold under the trade mark, WaterRower. The
Defendant ("Liking") is a company incorporated under the law of Hong Kong (LIKING
LIMITED). It retails water resistance rowing machines in the UK under the name TOPIOM
(TOPIOM Models 1 and 2).
2. WaterRower Ltd asserts various of its water resistance rowing machines are each works of artistic
craftsmanship within s.4(1)(c) Copyright Designs and Patents Act 1988 (as amended) ("CDPA").
These are defined by WaterRower Ltd as embodied in the water resistance rowing machines
shown in Annex 1 to the Amended Particulars of Claim dated 1 April 2022 ("APOC") and defined
as the Works (Annex 1 to the APOC is reproduced as Annex 1 to this judgment and is referred to
as Annex 1 throughout this decision).
3. WaterRower Ltd's case is that Liking has copied the Works, reproduced a substantial part of those
Works in its TOPIOM machines and has therefore infringed its copyright in the Works.
4. Liking alleges no copyright subsists in the Works (as defined in WaterRower Ltd's APOC and
additionally has a counterclaim for a declaration that no copyright subsists in the Works as they
are not works of artistic craftsmanship. There is also a dispute regarding which articles are pleaded
within the Works.
5. The CMC Order of David Stone sitting as a Deputy High Court Judge dated 8 August 2023 lists
the Issues for trial ("the List of Issues"):
Copyright: subsistence
(i) Is Version 1 of the Works a work of artistic craftsmanship in which UK copyright
subsists?
(ii) Are each of the subsequent Versions of the Works original copyright works of artistic
craftsmanship?
Copyright: infringement
(iii) Did the Defendant:
3
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1 cases
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Waterrower (UK) Ltd v Liking Ltd (T/A Topiom)
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