Distribution of MP3 players constitutes infringement of Community design

Creative Technology Ltd. vs. Garder A/S, the Supreme Court

In 2003, Creative Technology obtained a Community Design registration of a MP3 player, which had been marketed in Denmark since October 2002.

Garder initiated sale of a MP3 player in the identical design in but ceased sales thereof, on demand of Creative Technology after Creative Technology’s request for a preliminary injunction.

The Court found that the design rights belongs to Creative Technology, as to lack of proof to the opposite, that the design of Garder's MP3 player is identical with the design of Creative Technology and that Garder intentionally infringed the design rights of Creative Technology as Garder in the installation guide for its MP3 player referred to the MP3 player of Creative Technology.

Further, the Court found that Garder sold 4,074 MP3 players, that the MP3
players were sold in the same stores, that the MP3 players were exhibited without packaging, side-by-side, and therefore appeared identical to the consumers, and that the MP3 players of Garder were sold at a price of DKK 699 compared to DKK 999 for Creative Technology’s MP3 player. However, as the price of Creative Technology’s MP3 player was DKK 300 (approx. EUR 40) higher than the price of the MP3 player of Garder, the court found that that Garder’s MP3 player had not forced out Creative Technology’s MP3 player 1:1 of the market, and ordered Garder to pay compensation and damages with DKK 580,000 (about EUR 77,300).

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