Response Clothing Limited v. The Edinburgh Woolen Mill Limited - (29 Jan 2020)

If a substantial part of the concerned item has been copied then a copyright infringement will be said to have taken place

Intellectual Property Rights

The claimant ('Response') is a company based in Oswaldtwistle, Lancashire. It designs and markets clothing. The Defendant ('EWM') is a major retailer of clothing with about 400 stores in the UK. For three seasons between December 2009 and 2012 Response supplied EWM with ladies tops made of a jacquard fabric of a design referred to in the evidence as a 'wave arrangement'. The distinctive feature of jacquard fabrics is that the design they display is woven into the fabric itself, rather than being stamped, printed, or embroidered on top of the fabric. In this instance the design consisted of multiple lines in a wave pattern.

In 2012 Response sought to increase the price of the tops. The new price was rejected by EWM. EWM then supplied a sample of Reponse's top or a swatch of Response's fabric to other garment suppliers, including a UK based company called Visage Limited ('Visage'), with an invitation to supply tops made from a similar fabric. Visage got the order. From 2012 to 2015 it supplied EWM with tops made from a jacquard fabric which I will call the 'Visage Fabric'.

In 2015 Response again changed suppliers, now sourcing similar tops from Vietan Industrial Production and Trading Joint Stock Company – Hai Phong Branch, a Vietnamese company referred to by the parties as 'Cingo' and from a manufacturer based in Dhaka, Bangladesh called 'Bengal Knittex'. I will refer to the fabrics used for those tops as the 'Cingo Fabric' and the 'Bengal Knittex Fabric' respectively.Tops made from the Cingo Fabric were sold by EWM for one season only but those made from the Bengal Knittex Fabric have been sold ever since and are still in EWM's range.

Response claims that copyright subsists in its wave arrangement design, either as a graphic work or as a work of artistic craftsmanship and that it is the owner of that copyright. Response alleges that the Visage, Cingo and Bengal Knittex fabrics were infringing copies of the wave arrangement design and that EWM has infringed its copyright by the sale of tops made from the infringing fabrics, such sales being both primary and secondary acts of infringement. The main question involved was whether copyright could subsist in the Wave Fabric. Hence it was concluded that EWM has infringed Response's copyright in the Wave Fabric by sales of the Visage, Cingo and Bengal Knittex Fabrics as made up into tops.