Copyright Infringement Case Study: Response Clothing Ltd v The Edinburgh Woollen Mill Ltd

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:

• Between 2009 and 2012, Response supplied EWM with ladies tops made of a jacquard fabric which a design that was referred to as a “wave arrangement”. The distinctive feature of the tops was that the design was woven into the fabric itself, rather than being stamped, printed or embroidered on top of the fabric.  The design itself consisted of multiple lines in a wave pattern.
• In 2012, Response sought to increase the price of the tops but the new price was rejected by EWM. EWM then supplied a sample of Response’s top to a number of other garment suppliers, including a UK based company called Visage Limited, with an invitation to supply tops made from a similar fabric.  Visage got the order and between 2012 and 2015, Visage supplied EWM with tops made from a jacquard fabric.
• In 2015, Response changed suppliers again and began sourcing tops from a Vietnamese company referred to as Cingo and from a Bangladeshi manufacturer called Bengal Knittex. The tops made by Cingo were only sold by EWM for one season but the tops made by Bengal Knittex have been sold ever since and remained part of EWM’s range when this case went to trial. 

Response claimed that copyright subsisted in its wave arrangement design, either as a graphic work or as a work of artistic craftsmanship. 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 craftsmanship. This was because Response had produced the wave design in a skilful way, had taken justified pride in their workmanship and had creative ability, which meant the tops created had an aesthetic appeal that had proven popular with consumers.

The Court's decision, in this case, has some practical implications for the textile industry as follows.

• The Court's decision, in this case, means that fabric designs which are produced by the threads themselves rather than, for example, being printed on top will be protected by copyright law. Until the Court's decision in this case, many had thought that such designs did not attract copyright or design right protection and so could be freely copied in the UK. 
• If the Court's decision, in this case, is followed and approved in other intellectual property cases, the definition of works protected as works of artistic craftsmanship has been extended, so it includes machine-made and mass-produced items as long as these items are their creators' own intellectual creation and have an aesthetic appeal which is popular with consumers.
• In the longer term, the Court's decision may extend what types of work are protected by copyright law.

Notwithstanding the above, the Court's decision leaves the issue of 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 will surely be further developments on this issue as the Court deals 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 and other intellectual property disputes relating to trademarks, patents, confidential information and data protection.