Copying
70.There was considerable discussion of the fabrics by the experts, with particular attention to ‘blisters’, raised parts of fabric which create the wave pattern, on the ‘ground’ or flat areas of the fabric. This is putting it too simply because the experts identified different categories of blister and ground areas, but I need not explore the subtleties. 71.In cross-examination Mr Herbert no longer relied on large parts of his evidence which he described as being just part of his research, which he thought he should set out. The most compelling evidence he gave in support of his view that the Visage, Cingo and Bengal Knittex Fabrics had each been copied from the Wave Fabric were illustrations of each of those fabrics stretched by ring to reveal, more clearly, the wave patterns of each fabric. Annexes 2, 3, 4 and 5 to this judgment are respectively the Wave, Visage, Cingo and Bengal Knittex Fabrics. Annex 6 shows the China Ningbo Fabric (unfortunately photographed by Mr Herbert with the lines running in a horizontal direction). 72.It is significant that the so-called China Ningbo Fabric, which looks a little different to the other four, was a fabric on which, right up until the trial, EWM had intended to rely to show that the Wave Fabric is not original because of the alleged striking similarities between this fabric and the Wave Fabric. 73.Mr Herbert was satisfied on the basis of his images shown in the Annexes that each of the Visage, Cingo and Bengal Knittex Fabrics had been copied, directly or indirectly from the Wave Fabric. Mr MacLellan was cross-examined on these images. He accepted that the similarities in design features could not be a coincidence and conceded that there could have been copying. 74.In my view, the similarities are sufficient for me to infer that in each case there was direct or indirect copying of the Wave Fabric.