Bjørn Wiinblad Foundation wins licence agreement case
The Danish Eastern High Court has found in favour of the foundation of the late Danish artist and illustrator Bjørn Wiinblad (Bjørn Wiinblads Fond) in a matter concerning the interpretation of a more than 20 year-old licence agreement. The High Court found in favour of Bjørn Wiinblads Fond, ruling that the termination of a licence agreement by the foundation had been valid, thus commuting a decision by the Copenhagen Maritime and Commercial High Court of 2017. Plesner represented the foundation in the case.
The case concerned a licence agreement from 1997 between Bjørn Wiinblad and a watchmaker. Under the agreement, the watchmaker was entitled to use some of Wiinblad’s drawings in its production and sale of watches against paying a fee. The agreement contained a clause which, in the event of Bjørn Wiinblad’s death, entitled the watchmaker ”to use the drawings etc. released by the licensor for said purpose for continued production of watches and sales for as long as the licensee so requests” without paying any consideration to the estate.
However, other than a test collection from 1998, presented at three European trade shows for the watchmaking industry, the licence agreement was never applied, and the watchmaker therefore never paid any royalty fees to Bjørn Wiinblad.
Following the death of Bjørn Wiinblad in 2006, a foundation, Bjørn Wiinblads Fond, was established in accordance with Wiinblad’s will. In 2012, the foundation signed an exclusive licence and right-of-use agreement with the Rosendahl Design Group concerning the rights to the works of Bjørn Wiinblad.
In 2015, however, the watchmaker approached the foundation concerning a contemplated relaunch of the watches with Bjørn Wiinblad’s motifs based on the licence agreement. Following unsuccessful negotiations between the parties, this led to the institution of the action.
In its judgment of 14 September 2018, the Eastern High Court found in favour of Bjørn Wiinblads Fond, establishing that the foundation had validly terminated the agreement and that the clause referred to above could not produce a different result. The High Court interpreted the clause and the agreement in its entirety to the effect that it was deemed to be a precondition for the licensee’s rights under the clause that the watches were in production and on the market at the time of Bjørn Wiinblad’s death. The Copenhagen Maritime and Commercial High Court had arrived at the opposite result.
As a result, the Eastern High Court further found in favour of the foundation by ordering the watchmaker to acknowledge that any form of production, sale and marketing of watches with Bjørn Wiinblad’s motifs would constitute a copyright infringement.
Attorney-at-Law and Partner Christian L. Bardenfleth conducted the case on behalf of Bjørn Wiinblads Fond before the Eastern High Court and the Copenhagen Maritime and Commercial High Court.