Originality
65.Mr Park said in his statement that the Wave Fabric was an original work and not copied from any other design, but it is not certain that he had direct knowledge of this. Neither is it certain what he had in mind by the term ‘original’. There is less room for ambiguity in his assertion that the Wave Fabric was not copied from another design, but his source of that information is unknown. I can give Mr Park’s statement only little weight. 66.The Wave Fabric was created in 2009. Up until the trial, EWM relied on a similar fabric supplied by China Ningbo International Cooperation Ltd, said to have been created in 2005. EWM argued that this was sufficiently similar to the Wave Fabric to deny the latter of originality. During cross-examination it emerged, by the consensus of the experts, that the China Ningbo Fabric was in fact a fabric made by Bengal Knittex, presumably after it had been approached by EWM. 67.Mr Harbottle submitted, rightly, that it was for Response to prove originality, not for EWM to disprove it. But the nature and extent of EWM’s failed attempts to find a fabric pre-dating the Wave Fabric are nevertheless relevant. Mr Anderson confirmed that he had organised thorough inquiries, particularly in the Far East, to search out fabrics available earlier than 2009 and which were similar to the Wave Fabric. He also confirmed that no similar fabric had been found. 68.There was nothing in the evidence that cast any doubt on Mr Park’s assertion that the Wave Fabric was not copied from another design. On the balance of probabilities I accept that it was not. That being so, it must follow that the Wave Fabric was the author’s own intellectual creation, see Levola