Claim No: IP-2022-000099 - [2025] EWHC 805 (IPEC)

This is the most difficult factual dispute to resolve in the trial. That is why the Court would have benefitted from direct evidence from Ms. Hale. Was the creation of the alleged infringing design mere coincidence, or has there been a cover-up by the Defendants (no pun intended)?

In spite of the incomplete nature of the evidence, I am satisfied that, even if valid, there was no copying of the Claimant’s design in the creation of the Nastygal bikini. This is for multiple reasons, many of which apply equally to the other alleged infringing items in the case.

Firstly, the opportunity for copying was extremely limited. I accept the evidence that the design of the bikini did not specify the straps as shown in Design 1. So it seems that the alleged infringing design was only created for the first time in the photo studio. I find it extremely improbable that the persons responsible for the photo shoot would have searched online for hints as to how to wear the bikini and found the Claimant’s designs. Instead, it is much more likely that they assembled the cloth and straps themselves in the way that it can be seen being worn by the model. Alternatively, any of them might have had experience of “multiway” bikinis and suggested it be worn accordingly.

Secondly, the time elapsed between the Claimant’s publication of Design 1 (assuming a 2016 creation) and the design of the alleged/infringing bikini and/or the photo shoot. It is inherently improbable that even if someone involved had searched online for bikini designs, a design made some 5 years earlier would have appeared. This is particularly given the case that the Defendants’ influences seem to be social media feeds rather than Google searches, which are normally organised by date, and the aim would be to reflect current fashion trends.

I note that the Claimant has not put forward any evidence that her designs had become “stock” photos on social media sites such as Pinterest, which might have compensated for the passage of time between publication on her own social media feed and alleged copying.

Thirdly, and combined with the previous point, is the relatively low profile of the Claimant’s own social media channels. The contemporaneous material shows that the Claimant had only a handful of likes and comments on the Facebook pages showing her designs over the relevant period. Her Instagram account Scrunchbooty had just 268 followers in 2020.

I accept the Claimant’s submission that the numbers of people on social media were much smaller in 2012. The Claimant also pointed out that she had been found by Vogue despite her small social media following – so she had sufficient visibility to be noticed. Again, I accept that. But that does not do enough to establish that at the time any of the alleged infringing designs were made the Claimant’s profile was big enough to make it likely that her postings would have been one of the sources of inspiration for the Defendants’ articles. The numbers of followers and likes for her publication of Design 1 are just too small to make it likely that the Defendants would have come across it many years later.

Fourthly, I flatly reject the suggestion by the Claimant that the Defendants would have used any depictions of the Claimant’s designs which had been sent to Mr Kershaw or other members of the legal department by way of complaint. Although the Defendants were technically in possession of a large number of the Claimant’s designs as a result of her voluminous correspondence with them, I reject any suggestion that these designs would have been passed on to the design team. That is inherently improbable in a situation where the Defendants were expending time and money in trying to persuade the Claimant that there were no infringements of her rights.

Fifthly, the improbability of the above needs to be compared with the much higher probability that, given that the cloth and ties are identical as between Design 1 and Ms. Hale’s non-infringing sketches, someone might have put them together in the same way as depicted in Design 1 without copying. That is a function of the low originality of the Claimant’s design (assuming validity), which is generic enough that other people in the industry are quite capable of coming up with the same design independently. There are only so many ways to wear a multiway bikini such as the Claimant’s, and given the very high volume of products, including bikinis, being made by the Defendants each week, it is not surprising that a case has arisen whereby one has been worn in the same way. The high level description of the design also makes it impossible to find any telltale indications of copying.

Finally, I note that there is no suggestion in the Defendants’ publicity that the alleged infringing design is or can be used “multiway”. Had there been copying of the Claimant’s material it might have been expected that the Defendants would wish to advertise this fact.

For all these reasons and in spite of the evidence from Mr Kershaw indicating that designs are copied from social media on occasion by the Defendants, I reject the suggestion that the Claimant’s Design 1 has been copied in the present case.