January 17, 2021

Volume XI, Number 17


January 15, 2021

Subscribe to Latest Legal News and Analysis

Bronze, Shape, Glow: A Copyright Tale Destined For Broadway

Stores like Aldi are increasingly popular with UK consumers as a result of offering “copycat” products of well-known brands at drastically lower prices. However, with this rise in popularity, brand owners and creatives are being increasingly frustrated by finding their products and ideas at the mercy of imitation products.

One such aggrieved party was well known makeup brand Charlotte Tilbury (Tilbury), who found their “Starburst” lid design and the “Powder Design” of their “Filmstar Bronze and Glow” set had provided the ‘inspiration’ for Aldi’s own “Broadway Shape and Glow” set. Tilbury filled a UK High Court claim for copyright infringement over the products shown below, with Aldi adamantly rejecting that any copyright had been infringed in their ‘inspired’ makeup set.

The main difficulty Tilbury faced was the fact that it is notoriously hard to claim copyright in mass produced 3D products as English Courts have historically been reticent to consider them “sculptures” or “works of artistic craftsmanship”.

However, Tilbury was successful in arguing that the “Starburst” lid design and the “Powder Design” on their product were original artistic works and as such the product was protected by copyright. Tilbury were able to establish their artistic copyright as “a work need only be ‘original’ in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person.” Once establishing the existence of copyright in the artistic work the Court had little difficulty in finding that it had been substantially copied by Aldi for its “Broadway Shape and Glow” set and summary judgement was granted in Tilbury’s favour.

This case not only marks a success for the aggrieved brands and creatives who feel short changed by “Like brand inspiration” products but also provides some interesting learning opportunities for brand owners in the quest to protect their designs. Tilbury was successful in arguing copyright infringement due to the original artistic “starburst” element in its product design, the elements where the copyright lay. Brand owners may consider incorporating similar artistic elements into their products to act as a form of protection against imitators or at least provide ammunition for a copyright infringement claim should they need it.

Click here for the Judgement.

Copyright 2020 K & L GatesNational Law Review, Volume IX, Number 228



About this Author

Serena Totino, KL Gates Law Firm, London, Intellectual Property Attorney

Serena Totino is an associate in the firm’s London office, where she is a member of the IP Procurement and Portfolio Management practice group. Ms. Totino manages the trademark and design portfolio of international companies, advising clients on infringements, invalidation actions and international filing strategies. In addition, she has experience in negotiating and drafting IP related agreements and has worked on a range of copyright and domain name matters.

Daniel R. Cartmell Trainee Solicitor K&L Gates Law Firm
Trainee Solicitor

Daniel Cartmell is a trainee solicitor in the firm’s London office. He is currently gaining experience in the construction and infrastructure group.

Prior to joining the firm, Mr. Cartmell previously worked as a paralegal at an international law firm, working on subrogated recoveries. In addition he worked at K&L Gates as part of the vacation scheme program.