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

In order to determine the issue of copying it is necessary to understand how the Defendants typically go about launching a new design of clothing. Whilst the precise breakdown may vary between the different defendant companies, the witnesses explained the general practice as follows.

Mr Kershaw, boohoo’s General Counsel, gave evidence of the scale of the Defendants’ businesses. He explained that on average each of the defendant companies places hundreds of new garments for sale on its website each week, with the Sixth Defendant alone placing over 800 new products per week. This truly is “fast fashion”. Further, the design teams within each defendant are relatively small (10-15 designers), meaning that each designer is churning out multiple garment designs per day. It is therefore not surprising that ideas are constantly re-used during the design process.

Mr Blacklock, who is responsible for the buying, design, merchandising and Q&A teams at the First Defendant, explained that about 50% of the First Defendant’s products are designed in-house. The remainder will be designed by third parties and offered to boohoo for sale. The in-house design process is influenced by what is going on in the fashion world and what celebrities are wearing. It also includes looking at social media. In some cases a trend board will be sent to the manufacturer; in other cases a specific design will be requested.

Mr Binns, Chief Operating Officer of the Sixth Defendant, characterised the design process as occurring in one of four ways. Some garments – the higher price point items amounting to 10-15% of products – are “designer developed” by one of the 14 designers in the company. The majority of others – some 75% of the total – are “buyer developed” whereby the buyers will look at current trends and ask suppliers to prepare samples before production. In his oral evidence he explained that inspiration was taken from a range of different sources, including catwalks, designers and social media. In the case of catwalks, he added that this would be catwalks in the 12 to 18 months prior to the design process. The remaining products are designed by suppliers and offered to the Sixth Defendant with a minority of these coming “off the rack” from global wholesalers.

Mr Kershaw expanded on this in his oral evidence. He accepted that on occasion the Defendants would send images from social media (e.g. Instagram) of clothing made by other brands to their manufacturers for supply to the Defendants. The design document (using the wording of the Seventh Defendant) would include the wording “Nasty Gal owns all intellectual property in these designs including but not limited to registered and unregistered designs, goodwill and copyright, and shall take legal action in line with the supplier Terms and Conditions should these rights be infringed” even though the original design might have been a photo of a garment made by another brand (one example in evidence was from the brand Lahana Swimwear). Mr Kershaw explained that this stock wording was designed to indicate to the manufacturer that it did not have any rights in the design of the goods it was making for the Defendants.

Mr Kershaw referred on a number of occasions to the “sources of inspiration” used by the Defendants. As I put to counsel for the Defendants, it is clear that this phrase is on occasion a euphemism for a pattern of behaviour which involves the direct copying of garments found on social media, as occurred in relation to the bikini bottoms accompanying Design 1 and the leggings of Design 5 (see further below). As Mr Kershaw went on candidly to explain “typically, our buyers and designers will look at Instagram for sources of inspiration. They will look at high−end designer. They will follow the catwalk trends. They will share information from Pinterest and other sources.” However, he maintained that he was not aware, and had found no evidence, that any of the Defendants’ designers had at any time seen any of the Claimant’s garments and used them as a source of inspiration. He pointed out that typically such designers would follow more higher-end accounts or accounts with greater numbers of followers than the Claimant.

I asked Mr Kershaw about what steps the Defendants took to make sure that the rights of third parties were not infringed when using such “sources of inspiration”. He explained that the design teams were given training in relation to design right and copyright law. The evidence is silent as to whether any due diligence was carried out in relation to the designs used for the alleged infringing items in the present case and Mr Kershaw was unable to give further details.

As for documentary records, Mr Kershaw confirmed that the number of documents which had been turned up in disclosure was limited because many of the individuals who were involved with the design/purchase process of the garments in dispute were no longer employed by the Defendants and their inboxes were deleted in accordance with the Defendant companies' policies. It will be apparent from the enormous turnover of products that this means that large numbers of documents relating to the design of products will no longer exist.

With that general background I turn now to the specific evidence in relation to the creation of the alleged infringing items.