Case No. IP-2019-000124

24.I consider that validity of the ‘066 design depends entirely on whether the Urban Attitude brochure genuinely dates from 1999. This is for the following reasons: 1)The Urban Attitude “London+Flag+England” legend is identical to that appearing in the ‘066 design. 2)It is true that there is no image in the brochure showing a hoody with the “London+Flag+England” legend, but I do not see that anything turns on this since the hoody shown in the design is unexceptional and the brochure expressly indicates that a hoody will be supplied with the “London+Flag+England” legend applied. Mr Erol did not give any reason to suppose that a hoody, so supplied and bearing that legend, would look any different to the ‘066 design. 3)I accept that such a hoody might not be the same colour as the ‘066 registration but this makes no difference either since the colours are all unexceptional. Thus changing from blue to red, say, does not confer individual character. 4)Thus even assuming the ‘066 design is novel over the Urban Attitude brochure, it must lack individual character with respect to it since the overall impression is in both cases the same. 25.Mr Erol did not think that the Urban Attitude brochure designs dated from 1999 at all. He claimed that in or around 2014 he had been told by customers that Mr Hirji had (a) been investigated for VAT fraud and other offences by Trading Standards (b) been convicted of these offences, (c) given a prison sentence of about 7 years and (d) banned from being a director for life. Mr Erol thought that the 1999 date had been applied to a brochure showing designs which actually were from much later. This last point was in substance an allegation of forgery, since Mr Erol did not explain how it could have happened accidentally, and the forgery could only realistically have been done by Mr Zarguly. 26.Whilst I appreciate that this is Mr Erol’s genuinely held view, I do not accept it for a number of reasons.a)Mr Erol cross-examined Mr Zarguly to try and establish that the 1999 brochure had been forged. However Mr Zarguly denied this and maintained his explanation of how he had obtained it. b)I accept Mr Zarguly’s evidence as to how he obtained the 1999 brochure. There is no reason to suppose it is anything other than authentic, and I so find. I find that there was no such forgery. c)Any such finding of forgery would in any event have required considerably more evidence than I was given. For instance Mr Erol did not even ask for the original of the brochure which was copied by the Defendant’s solicitors. d)I also accept the evidence given by both Mr Zarguly and Mr Alam referred to above, to the effect that garments bearing the “London+Flag+England” legend had been sold by a number of London traders since the early 2000s. I appreciate that these sales are not relied upon as prior art in their own right but this evidence provides additional support for rejecting the allegation of forgery. e)Mr Erol was shown to be wrong about Mr Hirji’s alleged disqualification “for life” from being a director. In Mr Erol’s own cross-examination he was shown a list of currently disqualified directors which did not contain Mr Hirji’s name. Mr Erol accepted that he was mistaken. f)Mr Erol never showed any evidence to suggest that Mr Hirji had ever been guilty of any wrongdoing at all. Yet this was the only real reason Mr Erol gave for supposing there had been a forgery in the first place. g)Nor did Mr Erol explain why Mr Hirji’s wrongdoing in 2014, had it been shown to exist, would have had any relevance to the issue of whether the Urban Attitude brochure had been published in 1999. 27.I therefore find that the Urban Attitude brochure genuinely dates from 1999, and that the ‘066 design is invalid having regard to it. It is not necessary to consider Lambert Souvenirs or KK Hosiery but I will do so briefly in case I am wrong about the Urban Attitude brochure.