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Copyright and clothing

Bloomsbury IP/IT Law Briefing

James Nurton
Bloomsbury Professional

Response Clothing Ltd v The Edinburgh Woollen Mill Ltd (Rev 1) [2020] EWHC 148 (IPEC) concerned copyright in fabrics with a wave arrangement design. Response had supplied EWM with tops made with this wave design 2009 to 2012. Subsequently, EWM sourced tops with the same design from other suppliers and the judge concluded that this amounted to secondary infringement.

The Judge, HHJ Hacon, found that the wave fabric fell within the definition of ‘artistic craftmanship’. Having considered Directive 201/29 and the recent CJEU decision in Cofemel, he said:

‘(i) it is possible for an author to make a work of artistic craftsmanship using a machine, (ii) aesthetic appeal can be of a nature which causes the work to appeal to potential customers and (iii) a work is not precluded from being a work of artistic craftmanship solely because multiple copies of it are subsequently made and marketed. No binding English authority has been drawn to my attention which prevents me from construing s.4(1)(c) in that way.’

He went on to find that the wave fabric was the author’s own intellectual creation and was owned by the claimant, and that it was copied in substantial part: ‘The design of the Wave Fabric was not copied in every detail in any of the accused fabrics, but in each case it has been reproduced closely enough for a substantial part of the design of the Wave Fabric to have been copied.’ In every case the ‘intellectual creation’ of the original designer was taken.

While there was no primary infringement by EWM, there was secondary infringement: the similarities between the original wave fabric and the infringing copies ‘would have been apparent to a reasonable person and would have led that person to believe that dealing in the latter fabrics would be in breach of rights likely to be held by Response’.