Copyright infringement of fabric sample—witness evidence is key to outcome

Copyright infringement of fabric sample—witness evidence is key to outcome

How did the Intellectual Property Enterprise Court (IPEC) approach claims of copyright and unregistered community design infringement in a case involving the alleged copying of a designer’s fabric sample? In John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd [2014] EWHC 3779 (IPEC), [2014] All ER (D) 238 (Nov), t

he claimant and the defendant were both companies engaged in the fashion design business. The claimant had supplied the defendant with a sample of fabric. It brought proceedings, alleging that the defendant had breached its copyright and community design right by copying the design of the claimant's sample fabric to create an altered design later used for dresses sold by Marks & Spencer (M&S). The IPEC, in dismissing the claims, held that, on the evidence, the defendant had not copied the claimant's design in the fabric sample supplied to the defendant.

What was the factual background to this claim?

The claimant, John Kaldor, a design house, supplied a 4m sample of this fabric to Lee Ann Fashions. Lee Ann, who makes and designs garments, was interested in seeing the fabric to allow it to pitch for a brief to supply dresses to Marks & Spencer for its Per Una collection. Some time after supplying the fabric sample, John Kaldor became aware of this dress, sold in the Marks & Spencer Per Una collection which had been supplied by Lee Ann.

What were the legal issues?

The design of the JK fabric had been created on a computer, so the artistic work in which copyright was claimed was the relevant computer file. Lee Ann did not dispute ownership and subsistence of copyright or community design right.

John Kaldor brought proceedings alleging infringement of copyright and community design. It alleged that Lee Ann had copied the design of the JK fabric in creating the design of the LA fabric. Lee Ann countered this by averring that the LA fabric had been independently designed.

What did the IPEC decide?

The IPEC dismissed the claims of copyright and unregistered community design infringement finding that the LA fabric had been independently designed.

What should lawyers take from his case?

There are both legal and procedural points to take from this case.

Legal points

Considering the leading case of Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 All ER 700,

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