Looting the loot: Virtual in-game gold pieces are property capable of being stolen in criminal law

In AGA Rangemaster v UK Innovations [2025] EWCA Civ 1622, the defendants had refurbished genuine AGA cookers and fitted them with an electric 'eControl System' they had developed, thereby converting them from fossil fuel. 

There was no legal complaint about the refurbishment and conversion per se. However, AGA Rangemaster complained that specific aspects of the refurbished devices – the logos/signs and the marketing; and the appearance of the control panel incorporated – infringed its intellectual property (IP) rights.

The Court of Appeal confirmed that AGA Rangemaster’s trade marks had been infringed. This shows the risks in unilateral co-branding. The Court’s confirmation that AGA Rangemaster’s copyright infringement claim, in respect of its control panel, should be dismissed, shows that in the UK, it can be difficult to enforce copyright protection in relation to 3D shapes. Interestingly, the two parts of the judgment were given by two different judges. 

No exhaustion defence on the facts so trade mark infringement confirmed

First, the trade mark issue. The question on appeal was whether AGA’s trade mark rights had been “exhausted” because the original AGA cookers had previously been sold. 

At the time of the matters complained of, section 12 TMA provided that:

1. “a registered trade mark is not infringed by the use of the trade mark in relation to goods which have been put on the market in the UK or the EEA under that trade mark by the proprietor or with his consent”; and 
2. “subsection (1) does not apply where there exist legitimate reasons for the proprietor to oppose further dealings in the goods (in particular, where the condition of the goods has been changed or impaired after they have been put on the market).”

The refurbished cookers retained their AGA badges. The defendants had also applied their own eControl System badge to the cookers. The defendants’ marketing material (website and invoices) in respect of the refurbished cookers referred to the devices by the terms 'eControl AGA' and 'AGA eControl'.

In the Court of Appeal, Birss LJ explained that the authorities identify three situations where there are legitimate reasons to oppose further dealings in the goods, and while not exhaustive or necessarily without overlap, they provided a useful framework to analyse how the law applies. The three situations are:

• i. Where the condition of the goods has been changed or impaired after they were put on the market.
• ii. Where further dealings might seriously damage the reputation of the mark.
• iii. Where the further dealings give rise to the impression that there is a commercial connection between the defendant and the TM proprietor.

The first instance judge had dismissed situations i. and ii. as in inapplicable on the facts of the case – conclusions that were not challenged in the appeal. The defendants appealed though against the judge’s conclusion that situation iii applied on the facts of the case.

Birss LJ noted that in respect of situation iii., the CJEU in Case C-63/97 BMW v Deenik had in mind the impression of an affiliation with BMW’s authorised dealer network or of a special relationship between the two undertakings; whether advertising created the impression of a connection was a question of fact. From the CJEU’s judgment in C-046/10 Viking Gas v Kosan Gas, the test of whether a commercial connection had been created involved considering the position of the average consumer, taking into account trade practices in the sector. Two types of connection could be identified: one at the level of the undertakings themselves; a second concerning the origin of the gas used to refill the bottles in that case.

Birss LJ explained that whether the average consumer could ascertain no connection between the undertakings, or only ‘with difficulty’, was not a relevant consideration. The ‘with difficulty’ test in certain cited CJEU case law had arisen in the context of internet advertising based on key words, not in the context of the interpretation of the exhaustion provisions.

Having explained the principles, Birss LJ explained that the judge’s reasoning had not deployed the wrong legal test. Nor was the judge’s decision ‘rationally unsupportable’.

The essential problem for the defendants was that they did not simply use the AGA mark to indicate that their products were refurbished AGAs, rather they used the AGA mark along with their own other marketing material in a manner which made it likely that customers would be given a false impression. Based on the evidence in the case, there was every reason for a customer to think an 'eControl AGA' or an 'AGA eControl' was a product in AGA’s own range of cookers, that the eControl system was in all likelihood an AGA system, and that the conversion service was an AGA service. Having chosen to market their goods in the way that they had, the defendants could have chosen to make clear statements dispelling any false impressions (but they had not). 

Birss LJ made clear ([57]): “The compound signs “eControl AGA” and “AGA eControl” should simply not be used." The exhaustion defence provided by s.12 TMA therefore did not apply on the facts and AGA Rangemaster’s claim for trade mark infringement succeeded.

No copyright infringement because s.51 CDPA industrial designs defence operated

Second, the copyright issue. In the Court of Appeal, the defendants did not challenge the judge’s finding that copyright subsisted in a diagram depicting 'control panel graphics' for electric AGA cookers, on the basis that it was an original artistic work (more specifically an original drawing) created by AGA Rangemaster’s employee Martin Johnson. The diagram was referred to as the 'AGA Panel Work 1'. Nor did the defendants challenge the judge’s finding that they had indirectly copied the AGA Panel Work 1 and that their control panel reproduced a substantial part of it.

Nevertheless, the judge had held that the defendants had a defence under section 51 of the Copyright, Designs and Patents Act 1988 (CDPA), and therefore AGA Rangemaster’s claim for copyright infringement must be dismissed.

Section 51 CDPA provides that: "(1) it is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design”; and for this purpose “design means the design of the shape or configuration (whether external or internal) of the whole or part of an article, other than surface decoration; and ‘design document’ means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise".

Section 51 is not the easiest provision to digest. It is a provision of domestic origin included in the CDPA for the purpose of preventing copyright protection of industrial designs via design drawings (the aim was that design right would protect functional products/industrial designs; the length of copyright term was considered excessive for such products). The effect of s.51 is that, while a product which itself satisfies the criteria for copyright subsistence as an artistic work (or a typeface) will benefit from copyright protection, a product which does not satisfy the criteria for subsistence as an artistic work (or a typeface) cannot nevertheless be protected in copyright law through copyright subsisting in a design drawing or model recoding it.

The defendants relied upon the defence provided by s.51 CDPA. AGA Rangemaster argued that it was not available on the facts because the ‘control panel graphics’ embodied in the AGA Panel Work 1 was itself an ‘artistic work’.

Section 1(1) CDPA provides that copyright subsists “in accordance with this Part in the following descriptions of work – (a) original literary, dramatic, musical or artistic works…”. It was common ground that this is a closed list. Section 4(1) CDPA defines “artistic work” as meaning one of three subcategories of work set out in paragraphs:

• (a) (“a graphic work, photograph, sculpture or collage, irrespective or artistic quality”),
• (b) (a work of architecture being a building or model for a building) and
• (c) (a work of artistic craftsmanship).

Again, it was common ground that this is a closed list. 

Subsection (2) then states that “graphic work” includes “(a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work”.

AGA contended that the control panel graphics embodied in the AGA Panel Work 1 was a graphic work because it was “a thing to be looked at”.

After considering the case law, Arnold LJ said that HHJ Hacon had correctly stated the nature of “graphic work” in Response Clothing v Edinburgh Woollen Mill [2020] EWHC 148 (IPEC), when he said:

"It is true ... that the statute defines 'graphic work' to include the types of work listed and the list is therefore not exhaustive. It does not follow that the definition is endlessly flexible. All the examples of a graphic work set out in the subsection are created by the author making marks on a substrate to generate an image. I do not think that the definition of a graphic work can be stretched to include a fabric, whether made on a loom or a knitting machine."

Arnold LJ said that Judge Hacon’s interpretation was supported not only by the examples given in s.4(2) CDPA, but also by the meaning of the word “graphic”, which is defined in the Oxford English Dictionary as follows:

"Of or relating to drawing or painting. graphic arts: the fine arts of drawing, painting, engraving, etching, etc.; also, the techniques of production and design involved in printing and publishing; graphic design: graphics (sense B.2); so graphic designer."

AGA’s interpretation involved stretching the word “graphic” far beyond its dictionary meaning, coming close to disregarding the word altogether. Therefore, Arnold LJ agreed with the defendants that “a thing to be looked at” is necessary but not sufficient for a work to be a ‘graphic work’. He agreed with the judge that the control panel embodied in the AGA Panel Work 1 was not an artistic work because viewed as a whole, the panel was primarily a functional object (although incorporating artistic elements, and in particular graphic elements). 

Arnold LJ declined to determine whether section 51 CDPA was itself compatible or not with assimilated EU law. 

Broader take homes raised by the Court of Appeal’s reasoning

The Court of Appeal was clear that there was no complaint about the defendants’ refurbishment of genuine AGA ovens. The complaint was about the co-branding and marketing of the refurbished (and converted) cookers, which made it likely that customers would be given a false impression of a connection between the defendants and AGA Rangemaster, and therefore gave AGA Rangemaster legitimate reason to oppose further dealings in the goods.

The absence of a 'work of artistic craftsmanship' argument

In the context of the copyright dispute, AGA Rangemaster did not contend that the control panel was any other form of artistic work, for example by contending that it was a work of artistic craftsmanship. An eyeball test would suggest that AGA Rangemaster’s prospects of succeeding on such an argument would be weaker than WaterRower’s prospects were of establishing that its prototype rowing machine was a work of artistic craftsmanship (WaterRower did not succeed, in WaterRower v Liking [2024] EWHC 2806 (IPEC)). However, the deputy judge’s reasoning in the WaterRower case has not been tested in the Court of Appeal, and it raises key questions for informed observers.

First, the deputy judge in the WaterRower case applied mid-1970s House of Lords reasoning on what constitutes a ‘work of artistic craftsmanship’ which presents internal inconsistencies. Among other things, although the judge noted that the design of the WaterRower was visually striking and many people found it aesthetically pleasing, he concluded that it did not meet the standard described in Hensher v Restawile [1976] AC 76 of having “an artistic quality” involving “more than eye appeal”.

Second, the deputy judge in the WaterRower case therefore concluded that copyright as an artistic work did not subsist in the design of the WaterRower, even though it met the test for copyright subsistence under assimilated EU case law, in particular C-683/17 Cofemel v G-Star Raw.

More broadly, assimilated EU law raises questions as to the compatibility of UK copyright legislation requiring a ‘work’ to fit within a defined category (e.g. ‘artistic work’, and within that e.g. a ‘graphic work’ or a ‘work of artistic craftsmanship’) in order for copyright subsist. It also raises questions as to the compatibility of s.51 CDPA in its entirety.

Arnold LJ was probably wise though to duck the s.51 compatibility questions in this case. There is no longer a principle of supremacy of EU law. Domestic principles of statutory interpretation now apply. For s.51 CDPA, background includes the 1980s consultation process and the purpose of limiting copyright protection available in respect of industrial designs. 

AGA Rangemaster commenced its litigation against the defendants before the Retained EU Law (Revocation and Reform) Act 2023 come into force. Therefore, for the purposes of this case, it might have been possible to argue pursuant to the EU (Withdrawal) Act 2018 section 4 (as it then stood) that to the extent the requirements of the InfoSoc Directive (as explained by the CJEU in its Cofemel judgment) had not been adequately implemented in domestic law pre-Brexit, they should be recognised as if they had been.

However, if successful, such a point would not in practice have made much meaningful difference to the outcome between the parties to the case. Yet it would have generated significant uncertainty in the law. 

Alongside the appeal in the AGA Rangemaster v UK Innovations case, the UK IPO’s consultation on designs law has been engaging with stakeholders in detail on the future of designs law. Responses make clear the need for Parliament to consider carefully the interplay between designs law and copyright law too. Legislation progressing UK designs law is unlikely to be presented soon, but when it is presented, it is quite likely to be substantive.

In the meantime, there is plenty to be tested about the breadth of the ‘work of artistic craftsmanship’ category of ‘artistic work’.