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A recent decision by the Intellectual Property Enterprise Court has clarified the challenges claimants face when asserting infringement of unregistered design rights, particularly within the fast fashion sector.
Background
The case involved a fashion designer who brought proceedings against a major online retailer, alleging that several of her clothing designs had been unlawfully copied. The designer, who had built a modest following via social media and gained limited exposure through fashion magazines and an industry exhibition, claimed infringement of unregistered UK design rights in a sleeve with an extended cuff, two skirt designs, a pair of leggings, and a bikini top.
The defendant retailer operates at scale, releasing hundreds of low-cost garments weekly in response to prevailing trends on social media platforms. The designer contended that her original designs had been appropriated without consent.
Court Findings on Design Right Subsistence
The Court considered the extent to which design right subsisted in the claimant’s works. Notably, the designer had not formally documented her designs, which meant that her claims had to rely on broadly defined visual features. While the Court recognised that this can sometimes support infringement claims by allowing greater flexibility in comparison, it also observed that it becomes harder to prove copying due to the potential for multiple independent sources of inspiration.
The Court ultimately found that:
The design for the extended cuff could not be defined in terms of its interaction with the body (i.e., its positioning from wrist to elbow), agreeing with the retailer that such a functional definition fell outside the scope of protectable design.
However, design right did subsist in certain features of the sleeve, as well as in the designs of two skirts and the leggings.
The claim in respect of the bikini top failed, as it lacked sufficient originality.
No Inference of Copying
On the issue of copying, the Court was not persuaded by the designer’s assertions. The evidence demonstrated that the retailer’s design process was high-volume and reactive, with design teams producing numerous garments each day, often drawing broad inspiration from social media trends.
The designer’s work, although visible in certain circles, had not achieved the level of prominence that would make it likely to have been noticed by the retailer’s teams several years after its initial release. The Court placed particular emphasis on the relatively low originality of the designs and the commercial context in which overlapping styles often emerge independently due to functional constraints and market saturation.
It was concluded that any resemblance between the claimant’s and defendant’s garments was coincidental, and the claim was dismissed.
Commentary
This case serves as a significant reminder of the evidentiary hurdles involved in establishing copying in unregistered design right disputes. It underscores the importance of maintaining comprehensive records of design development and of the limitations faced when relying on loosely defined or widely adopted aesthetic elements in the fashion industry.