With the UK now in a transition period after formally leaving the EU, the Intellectual Property Enterprise Court (IPEC), a specialist court, part of the Business and Property Courts, must consider whether the UK will move away from or continue to develop with EU case law.
The recent decision of Response Clothing v Edinburgh Woollen Mill  EWHC 148 (IPEC) provides an insight to the approach of English Courts post-Brexit.
Response Clothing (Response) supplied tops with its “wave fabric” to Edinburgh Woollen Mill (EWM), a large retailer with hundreds of stores across the UK. In 2012, Response tried to increase its prices; however EWM refused, and provided a sample of the wave fabric to suppliers outside the UK and invited them to supply tops made from a similar fabric. EWM went on to sell tops produced by its new and cheaper suppliers; Response sued for infringement.
IPEC held that under s4(2) of the Copyright, Designs and Patents Act 1988, while a drawing is classed as a graphic work, fabric falls outside of that definition as it was created by a machine. However, IPEC has expanded the definition of artistic craftsmanship in the context of subsistence of copyright to include fabric designs under s4(1)(c) of the Act.
The judgment focuses on a definition for works of artistic craftsmanship. It was held that the author of the work must be:
- A craftsman in that the fabric was made in a skilful way, taking justified pride in their workmanship; and
- An artist in that they used their creative ability to produce something that had aesthetic appeal.
The court also emphasised that an author of a work of artistic craftsmanship can use a machine to create the works, the aesthetic appeal can be what attracts customers to the works and multiple copies being made and marketed did not take away the status of artistic craftsmanship from the works.
The court found that the similarities between the fabric produced by Response and the fabrics produced by the new suppliers were sufficient enough to infer direct or indirect copying. Although the wave fabric was not copied in its entirety, it was reproduced closely enough for a substantial part to have been copied, and therefore the intellectual creation of the author had been stolen.
The apparent broad approach taken by the IPEC in this case is good news for a host of industries: unlike design rights, which only grants a maximum of 25 years’ protection, copyright protection applies for the life of the author and another 70 years.
On a wider scale, this decision is one of the first opportunities the English Courts have had to address the incompatibility of requirements for copyright protection between recent European case law and national copyright law. While the English courts are technically bound by European decisions during the transition period, post-Brexit this may be one of the first areas where we see UK copyright protection diverge from the position in European Courts.
This article was written by Aysha Hussain and Abigail Brown of our TMT Dispute Resolution team. If you are seeking advice in respect of design, trademark or copyright, please do get in touch.