Design Rights - Inspiration is One Thing But Deliberate Copying Quite Another

Every fashion industry professional knows that innovative designs tend to spawn imitation. However, as a High Court ruling showed, there is a great difference between acceptable inspiration and illegitimate copying.

The case concerned a company that sold a style of knee-length ladies' boot that was based on a traditional Spanish riding boot. It launched proceedings against a competitor, alleging infringement of its registered community design and unregistered UK design rights in the footwear.

In rejecting the competitor's arguments that the design rights were invalid, the Court found that a director of the company had designed a visually significant and original feature of the boot in the form of a full-length elasticated panel covered with thin leather strips. The innovation was not commonplace and the boot's design was, in that respect, different from all that had gone before.

The Court noted that, for two consecutive years, the competitor used photographs of the company's boot in its catalogue to advertise its own boots. It had no hesitation in finding that all three relevant versions of the competitor's boots were deliberately copied from the company's boot.

The first version was, at first glance, identical to the company's design. The second, somewhat modified version also infringed the company's rights in that it was made substantially to the same design. The third version, however, did not infringe in that it represented a significant step away from the company's design and produced a different overall impression. The question of the financial or other remedies to which the company was entitled would be decided at a further hearing, if not agreed.