Fashion Retailer Defeats Allegations of Design Infringement

A fashion retailer has successfully defended a claim of infringement of unregistered design rights brought against it by a clothing designer.

The designer mainly promoted herself through social media. Her work had achieved recognition in two fashion magazines and she had exhibited at a major fashion show. She brought a claim against an online retailer operating in the fast fashion sector, where hundreds of different low-cost garments are released per week based on social media trends. She claimed that the retailer had infringed unregistered design rights in the designs of various items of clothing she had created.

The Intellectual Property Enterprise Court noted that she had not recorded her designs in documents, meaning that the designs were much more generally defined. While that might make it easier to establish that allegedly infringing articles were made to exactly or substantially the same design, there were more likely to be other possible sources for the design, making it more difficult to demonstrate copying.

The designer claimed a right in a design for a sleeve with an extended cuff reaching from past the wrist to under the elbow. The Court rejected the attempt to define the design of the cuff by reference to the wearer's wrist and elbow, agreeing with the retailer that a design cannot be defined by how it interacts with the wearer. However, the Court was just persuaded that there was sufficient originality in the rest of the design for design right to subsist. The Court also accepted that there was sufficient originality in features of designs for two skirts and a pair of leggings, but found that no design right subsisted in a design for a bikini top.

Turning to the question of whether the retailer had copied the designs, the Court heard evidence that each of the retailer's defendant companies placed hundreds of new garments for sale each week. The design teams within each company were relatively small and each designer would create multiple garment designs in a day. While the retailer acknowledged that its teams used social media for inspiration, it had no evidence that any of them had seen any of the designer's garments.

The Court noted that some time had passed between the designer's publication of her designs and the creation of the allegedly infringing products. Her social media channels had a relatively low profile: while she had had sufficient visibility to be noticed by magazines, the number of followers she had was too small for it to be likely that the retailer would have come across her designs many years later. The low originality of the designs meant that it was much more likely that any similarities arose coincidentally, given the very high volume of goods and the limited design space in producing garments to fit the human body. The Court concluded that copying had not taken place.