13 Feb 2015

As first reported here just before the Christmas holidays, the High Court ruled that Animal infringed Superdry’s design rights in the Superdry gilet.

Five things can be learnt from the decision:

  1. Changing a certain number of features from the original on the copied product is not enough to avoid infringement of Community unregistered design rights. This is because the test for infringement is one of “overall impression”. For example, changing the length of a placket, adopting buttons instead of a zip, and changing the width of drawstrings did not avoid infringement in this case.
  2. Parts of clothing can be protected by design rights. This means that one feature or a number of features of an article can be protected such as, in this case, the fastening mechanism of a gilet, its collar, and the way a hood is attached to it.  In this way, the essential characteristics of a garment can be protected.
  3. Registration acts as notice that you have rights in a design. Important designs can be protected by registration provided the application is made within a year of first marketing. EU wide registration protection is relatively cheap and quick to achieve.
  4. Branding (such as a logo or a name) is generally ignored by the courts when assessing design infringement (unlike trade mark infringement and passing off) except in cases where the simplicity of the design is a feature such as in an Apple iPhone.
  5. It is still necessary to show copying to succeed in an infringement action for unregistered design rights unlike registered design protection where it is not necessary to show that copying has taken place to succeed. In this case, Animal was found to have copied.


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