The case highlights the importance for designers to evidence each stage of the design process when creating a new design.
John Kaldor Fashion Ltd issued proceedings against Lee Ann Fashions alleging copyright infringement and infringement of their unregistered community design in the JK Fabric when they became aware of a similar design being used for Per Una dresses (the ‘LA Fabric’). John Kaldor had previously supplied Lee Ann with the JK Fabric and alleged they had copied the JK Fabric when creating the LA Fabric. Judge Hacon held that the designs were similar and that there was a possibility of copying. Lee Ann was left to rebut this inference through demonstrating they had designed the LA Fabric independently of the JK Fabric. Lee Ann were able to demonstrate the stages taken including, distorting and editing an earlier tribal print created by Lee Ann’s designer and a design brief requiring the fabric to have a ‘tribal look’. Judge Hacon believed he could only find that there had been unconscious copying if the similarities between the two designs had sustained a strong inference of copying. On the evidence he held that a large amount of the similarities were commonplace elements and held that there had been no copying. Both claims for infringement were dismissed. Since there was no copying the unregistered design right claim must also necessarily fail.
The case serves as an important reminder for print designers to evidence the stages by which they came to produce a design. The absence of a trail evidencing the design history in court may contribute to a finding of infringement.
Judgment Date: 21 NOVEMBER 2014