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

I deal with this in case I am wrong about the absence of design right in the pleaded 2016 version.

The alleged infringement of Design 1 was designed by Emily Hale in early December 2021. Ms. Hale was and remains an employee of the Seventh Defendant. She was not called to give evidence and instead Mr Kershaw spoke to her and reported what she told him as a matter of hearsay. The Defendants explained that this was in part because they were restricted to the number of witnesses they could bring to trial (three) and given the number of defendants and number of alleged infringements they chose to bring appropriate representative witnesses instead.

I have some sympathy with the Defendants’ position, and I found Mr Kershaw to be an honest witness genuinely trying to help the Court. However, it is regrettable that decisions were taken for (understandable) case management reasons which prevented the primary witnesses on copying from attending trial.

It is also regrettable that although, again for understandable case management reasons, Practice Direction 57AC does not apply in the IPEC, nevertheless parties do not seek to adhere to it where they can.

In other words, I would have been assisted in my determination of the issue of copying if Ms. Hale had provided a witness statement which followed the guidance in PD 57AC. As it is, I will have to do the best I can with the material before me, to which I now turn.

The evidence from Mr Kershaw was as follows.

The NastyGal bikini was designed in-house by Emily Hale who is described in her email footer as “Assistant Designer - Swimwear, Beachwear, Lingerie and Nightwear”.

On 1 & 2 December 2021 Ms. Hale shared her proposals for new ranges of swimwear known as 'urban' and 'editor' with a junior buyer, Georgia-May Bartosz. The ‘editor’ line-up was as follows:

The second design from the left in the top row is the relevant one for present purposes.

Following this exchange, on 3 December 2021 Ms. Hale sent an email to a manufacturer based in China for sample development enclosing the editor “Tech Pack”. The Tech Pack contains CAD drawings which Ms Hale created with technical specifications for size, colours, and instructions for manufacture. According to Ms. Hale, the CAD for the NastyGal bikini in dispute is the image which is labelled with the style code MAYEDITOR002EH in the Tech Pack. It is shown first with a palm-tree print and then in a block colour described as Pantone shade 'subdued blue 14-4209'.