WaterRower (UK) Limited v Liking Limited (t/a Topiom)

This case was about rowing machines, but the commercial lesson is broader. WaterRower sold water-resistance rowing machines in the UK. Liking, trading as Topiom, sold competing machines in the UK. WaterRower said Topiom had copied its products and infringed copyright.

The claim was not framed around a logo, a brand name or a patent. It was framed around copyright in the product designs themselves. WaterRower said its machines were protected as works of artistic craftsmanship and that Topiom had reproduced a substantial part of those works in its own models.

The dispute covered a long design history. WaterRower relied on a series of machine versions shown in annexes to its pleadings, from Series 1 Version 1 through to Series 4 Version 8. But the court also had to deal with an earlier prototype created by John Duke, which WaterRower said was the first creative work in the series.

That made the case more complicated than a simple side-by-side product comparison. The judge had to work out what the claimed works actually were, whether the earliest prototype was in the case, whether later versions were original works in their own right, and whether any copyright subsisted at all.

The legal issue was not just whether Topiom’s machines looked like WaterRower’s. The first and most important question was whether WaterRower’s designs were protected by copyright in the way WaterRower claimed. The pleaded category was works of artistic craftsmanship.

There was also a procedural fight about the prototype. Liking argued that the earliest prototype was not properly pleaded as one of the works in issue. WaterRower said the prototype was central because it was the first creative work from which later versions developed.

The judge treated that pleading point seriously because it affected the whole structure of the claim. If the prototype was out of the case, WaterRower’s argument about later versions reproducing the original work would have been much weaker.

The prototype issue turned on old documents and the way the case had been pleaded. There was no photograph of the first prototype. Mr Duke’s evidence was that the prototype was reproduced in 2-D drawings in a May 1987 US patent application. He also described a later finished mahogany prototype shown at a boat show in Newport, Rhode Island in May 1987.

Liking said the prototype was not a pleaded work and that, if it had known WaterRower was relying on it in that way, its cross-examination would have been different. The judge was not persuaded. He reviewed the amended particulars of claim, the list of issues, the requests for further information and the parties’ wider exchanges.

The court concluded that the definition of the works was not limited by the pictures in the annexes and included the prototype. Alternatively, even if the prototype was not itself one of the defined works, the pleadings still clearly required the court to assess whether copyright subsisted in it.

The judge also accepted WaterRower’s evidence that the prototype was the first creative work in the series. He noted there had been earlier developmental work and sketches, but accepted that the prototype was the first creative work for the purposes of the case.

The court’s core finding was that no copyright subsisted in the works, including the prototype, as works of artistic craftsmanship. That ended WaterRower’s claim.

The judge accepted a number of points in WaterRower’s favour on the facts. He accepted that Mr Duke had a real connection with rowing and had developed the prototype mainly by hand. He accepted there was significant effort and skill in the early development of the prototype, including the choice of materials, the wooden frame, the joints, the shapes of different parts and the hand finishing.

The court also accepted that the prototype left room for design choices despite functional constraints. The judgment refers, for example, to the narrow proximity of the main rails and a repeating horizontal and vertical parallel motif in different planes and scales. The judge also accepted that the natural wood was used in a careful way to preserve and enhance its beauty.

The evidence also showed that the design had aesthetic appeal in the market. The judge referred to articles in newspapers and commercial journals and to the presence of WaterRower models in commercial design stores, including MOMA, as showing the high regard in which the design was held.

Even so, the court was not satisfied that the prototype met the statutory category relied on. The judge concluded that, construing the phrase as a composite question and taking a multi-factorial approach, the prototype was not a work of artistic craftsmanship within section 4(1)(c) CDPA.

The judge also found that only the prototype was original in the relevant sense discussed in the judgment. He did not accept the later modifications as original works in their own right on the evidence before him. For example, in relation to some later changes, the court considered that functional constraints limited the creative decision-making available and that the remaining freedom of expression was modest.

This is the part business owners often find surprising. Liking accepted that TOPIOM Models 1 and 2 were copies of WaterRower’s Series 4 Version 8 model, subject to copyright subsisting. The judge also said that if copyright had subsisted, the answers on copying, substantial reproduction and knowledge would have favoured WaterRower.

But infringement only matters if there is a valid right to infringe. Once the court found that no copyright subsisted in the works as works of artistic craftsmanship, the accepted copying did not rescue the claim. The claim was dismissed.

That is a useful commercial reminder. In IP disputes, businesses often focus first on whether a rival copied. Courts often have to focus first on a different question: does the claimant actually have the right it says it has, in the form it says it has it?

Liking did not just defend the claim. It also asked the court for a declaration that no copyright subsisted in the works because they were not works of artistic craftsmanship.

The judge said he had jurisdiction to grant that kind of declaration and noted that, on his findings, he could make the declaration sought. But a declaration is discretionary. The court still had to decide whether granting it would serve a useful purpose.

Liking said it wanted certainty in the marketplace and relied on evidence that the claim had made UK business relating to Topiom Model 2 and new product development difficult and uncertain. The judge found that the evidence on market uncertainty and the likely usefulness of a declaration was limited.

In those circumstances, the court refused the requested declaration and dismissed the counterclaim. So the final result was that WaterRower’s claim failed, but Liking did not get the extra declaration it wanted.

If your business designs products, this case is a warning against assuming that an attractive and commercially successful product shape will automatically be protected by copyright in the way you expect. WaterRower had evidence of copying and a product with clear visual appeal, but that was not enough to make the pleaded copyright claim succeed.

If your product has evolved over years, keep a clean record of the design story. Courts may need to identify the first creative work, track later changes and work out whether those changes are original, functional, consequential or merely iterative. That means dated drawings, prototype photos, CAD files, design notes and written assignments matter.

If your business sells competing goods, this case is not a green light to copy. The judgment records accepted copying and indicates that, if copyright had subsisted, the infringement findings would have favoured WaterRower. A rival product may still create exposure under other rights or other facts.

The safest reading is narrow. This judgment decided that the copyright case advanced here failed on subsistence and that the requested declaration should not be granted. It does not turn product copying into a low-risk strategy.

The judgment shows how much product litigation can depend on documents and conduct rather than just visual comparison. The court looked at the amended particulars of claim, annexed images, assignment documents, requests for further information, witness evidence and the 1987 US patent application drawings.

It also mattered that the parties had actively engaged with the prototype issue before trial. The judge noted that detailed questions had been asked about the first hand-made version of the works and the finished prototype. That helped support the conclusion that the prototype issue was already at the forefront of the case.

For a business owner, the practical message is simple. If you may one day need to enforce rights in a product family, your internal records should let someone else reconstruct the design history without guesswork.

The judgment was handed down on 11 November 2024 in the Intellectual Property Enterprise Court. The hearing took place on 24 and 25 July 2023, with further written submissions later, including in October and November 2024.

The court dismissed WaterRower’s claim. It also dismissed Liking’s counterclaim for a declaration, holding that the requested declaration would not serve a useful purpose.

For business readers, the lasting value of the case is practical rather than sector-specific. It is a strong example of a product design dispute where accepted copying did not produce liability because the right relied on did not subsist in the way argued.