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In the recent copyright infringement case of Response Clothing Ltd v The Edinburgh Woollen Mill Ltd, His Honour Judge Hacon, a Judge in the specialist Intellectual Property Enterprise Court (IPEC) held that the Edinburgh Woollen Mill (EWM) had infringed the copyright owned by Response Clothing in respect of a wave design on fabric.
The background to this case was as follows:
It was Response’s claim that copyright subsisted in its wave arrangement design, either as a graphic work or as a work of artistic craftmanship. Furthermore, it was Response’s position that as the creator of the wave design, it owned the copyright in it. Response alleged that the ladies tops made by Visage, Cingo and Bengal Knittex were infringing copies of its wave arrangement design and that EWM had infringed its copyright by selling the tops made of the infringing fabrics.
In holding that EWM had infringed Response’s copyright in the wave design, His Honour Judge Hacon found that although the definition of a “graphic work” in the Copyright, Designs and Patents Act 1988, did not include a design made from the threads of a fabric, he did agree that Response’s wave design was a work of artistic craftmanship. This was because Response had produced the wave design in a skilful way, had taken justified pride in their workmanship and also had creative ability which meant the tops created had an aesthetic appeal which had proven popular with consumers.
The Court’s decision in this case has some practical implications for the textile industry as follows.
Notwithstanding the above, the Court’s decision in this case leaves unresolved the issue as to whether the UK’s copyright regime is aligned with decisions made by the Court of Justice, namely the case of Cofemel where the Court of Justice held that there was no requirement for copyright works to have aesthetic appeal. It therefore appears, for the moment at least, that English law is incompatible with EU law in this respect. There are sure to be further developments on this issue as the Court’s deal with further cases so watch this space for updates.
Our specialist intellectual property disputes team routinely advises on a broad range of disputes relating to copyright along with other intellectual property disputes relating to trademarks, patents, confidential information and data protection. The team is also highly skilled at advising on design rights and reputation management issues and are regularly instructed by clients from the arts, media, textile and clothing sectors in the UK and internationally. If you need advice on copyright or other intellectual property infringements, please do not hesitate to contact a member of the team today on 0161 941 4000 or via email.