Case No. IP-2019-000124

4.The issues were identified at the case management conference held on 26 July 2021. I will rephrase them slightly as follows:1)Whether the ‘066 design was (a) new and (b) had individual character as at 18 May 2011.2)Whether the ‘067 design was (a) new and (b) had individual character as at 18 May 2011.3)Whether the Defendant’s garments produce on the informed user an overall impression different from (a) the ‘066 design (b) the ‘067 design. 5.As the case developed at trial, most of the argument and evidence focussed on the first 2 issues (ie validity) rather than the third (infringement). 6.So far as validity of the two designs was concerned, the Defendant relied on 3 alleged items of prior art. These were referred to as Urban Attitude, Lambert Souvenirs, and KK Hosiery.7.Urban Attitude was a company run by a Mr Danesh Hirji. The Defendant relied on an Urban Attitude brochure bearing the date 1999 on its front page. Two designs were particularly relied upon. The first is style EX10, which appears in a section headed “Expantex Teeshirts”. The second is style EH03 which appears in a section headed “Printed Hooded Tops”. I reproduce them below. Later pages in the same brochure show order forms for “printed teeshirts” in the colour “gray” [sic]. 8.Lambert Souvenirs was a tourist outlet that operated both online and from premises at 3 Whitehall, London. The alleged prior art took the form of a rather poor quality image of a red hoody said to bear the “London+Flag+England” legend. This prior art was found using the internet Wayback Machine, which was said to show that this image was on the Lambert Souvenirs website in March 2008. 9.KK Hosiery is a company which was run by Mr Zarguly of the Defendant, originally with a Mr Kamal. Here the Defendant relies on the following images from a KK Hosiery brochure which is said to date from 2007-2008. As will be seen these are hats and caps, not hoodies or T-shirts. There were also some gloves in this brochure which were said to bear the legend, but the legend on these is difficult to discern and I shall ignore them. 10.The argument on validity was whether the alleged prior art was prior art at all. The Claimant said that it was not, and the Defendant said that it was. I return to this below. 11.The Defendant did run a non-infringement defence, but solely on the basis of colour. It was said that if the designs relied upon were valid at all, it must be because they were limited to the colours red and grey respectively, and there was no evidence that the Defendant had sold any red hoodies or grey T-shirts. 12.On the day before the trial, the Defendant applied for permission to amend its statement of case to rely on a decision of the UKIPO declaring the ‘066 registration to be invalid. This was decision O-153-16, dated 23 March 2016. Mr Erol agreed that there had been such a decision before the UKIPO but said that he had successfully appealed it and that the ‘066 registration had been restored. I dismissed this application for reasons given at the time. Essentially (a) it was far too late for such an amendment to be introduced (b) it seemed likely to require further evidence and investigation. For instance the information on the UKIPO register about this registration seemed to be wrong, or at least incomplete. I have disregarded this material.