IP-2022-000020 - [2023] EWHC 1303 (IPEC)

This is an action for infringement of the UK unregistered design right (“UKUDR”) which is alleged to subsist in the design of the Claimant’s BKS-001 cargo trousers. The term “cargo trousers” was used during the trial to mean a type of work trousers featuring a large number of pockets. The only design document relied upon is shown at Annex 1.

The case management conference was heard before HHJ Hacon on 21 October 2022 and identified 8 issues for trial. However as so often happens in this Court, by the time of the trial the list of issues had narrowed somewhat. Before me the live issues were as follows:

This meant that I did not need to consider issues as to ownership of any design right, nor as to joint liability of the Third Defendant for acts done by the First Defendant. As regards the latter it was accepted that if the First Defendant was liable for any such acts, the Third Defendant was jointly liable in respect thereof.

There were 3 different versions of the alleged infringing products, which were referred to as the First, Second, and Third Samples respectively. They were made for the Defendants in Bangladesh by a company called (somewhat incongruously) S&S Swimwear.

Most of the argument on infringement focussed on the First Sample, which was purchased before sending the letter before action. I attach the Claimant’s markup of some photographs of that sample at Annex 2. The Third Sample is essentially the same as the First Sample, save that a particular label known as the “OEKO-TEX” label has been removed. Little time was spent on the Third Sample.

The Second Sample was purchased after sending that letter, but before issuing proceedings. I attach the Claimant’s markup of some photographs of that at Annex 3.