(This blog has been co-written by Sophie Dipper, Trainee Solicitor and Laura Trapnell, Head of IP)
In the interesting world of IP disputes, a design copyright dispute relating to two celebrity bedding ranges has caught our eye. The dispute, between “Kylie Minogue at Home” and “By Caprice” has recently been dismissed by the Intellectual Property Enterprise Court.
The claimant “Ashley Wilde”, who manufactures and sells duvet covers for the brand “Kylie Minogue at Home” owns copyright in the design for the “Evangeline” duvet cover, which features a repeating pattern of scallop-style pleats (top of the image). The defendant, “BCPL”, owned by model and reality television star Caprice Bourret, manufactures and sells duvet covers under the brand “By Caprice”.
Two of the By Caprice “Amore” products; a duvet cover and matching runner were the subject of the dispute (bottom of the image). Ashley Wilde sued BCPL for copyright infringement on the basis that the Amore products were indirect copies of the Evangeline design.
In order to infringe copyright, the alleged infringer must have copied a ‘substantial part’ of the original and the original design must be capable of copyright protection in the first place – ie it must be original, not copies from anywhere else and have involved a degree of skill in its creation.
The judge found that Ashley Wilde’s copyright had not been infringed, as there were several differences between the Evangeline design and the Amore products, such as the number, size and shape of the scallop-style pleats. Therefore, there were not enough close, numerous or extensive similarities to create the presumption of copying.
The judge stated that even if the similarities were more than a coincidence and were a result of copying, the evidence brought by the defendant did not reveal that anyone involved had seen the claimant’s duvet cover. Furthermore, the defendant had a credible story of independent creation.
The judge accepted that although the products were both available in the UK in just a few years of each other, scallops and pleats have been widely used in textiles and were very much in fashion when the Amore products were designed.
It appears that the judge was focusing on the ‘copying’ element and did not progress to a discussion of whether or not the ‘infringement’ had taken a substantive part of the original.
In our view, the second design, whilst indeed similar, does not take a substantive part of the original for the reasons mentioned above – the pleats are different in size, in number, in diameter etc and we are surprised that he dispute got as far as it did.