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

I can take these together because the only difference between them is that the back of the skirt in Design 4 is flat and not ruched (thereby excluding “and back” in feature (v) below). I find that both these designs were first made available by the Claimant on social media in late 2013. I reject the suggestion that Design 3 first appeared in 2014 through a catwalk display – contrary to the evidence of the Claimant, the December 2013 social media posting is of a dress with the same waistline. Design 4 was put on social media by the Claimant in November 2013, as originally pleaded by her in these proceedings. They are of a style referred to in the industry as “Bodycon” (standing for body conscious). These are tight fitting garments exemplified by wearers such as Kim Kardashian, although the Claimant claims to have pre-dated her use.

The Claimant relied on a multiplicity of features for these designs, as follows:

The Defendants object to reliance being put on features that are not present, cannot be seen and/or form no part of the shape and configuration, such as the concealed waistband, the absence of seams, zips or fastenings.

I agree – it is only those features which can be seen in an article which can be protected – see Rolawn and Albert Packaging. Features (iii), (iv) and (ix) should be excluded, along with (vi) which adds nothing. For the reasons given above any features which depend on the precise shape of the wearer should also be disregarded. This includes the “high” waistline. So what is left is the chevron shape at the back and front of the waist (i) and hem (ii), the ruching which is gathered in the centre on the front or back (Design 3) or at the front only (Design 4) (v) & (vii) and the draping at the leg which follows from the combination of (ii) and (viii).

There was a debate in the evidence as to whether the dress could be worn to the side so that the features above are effectively rotated 90 degrees. It was accepted that it could but I do not consider that that changes the overall shape and configuration of the dress relied on which, after all, must ignore the position of the wearer.

It was also said by the Defendants that the folds amounted to surface decoration. I disagree. The ruching is distinct and three dimensional and goes beyond mere surface decoration.

Although there was some evidence as to the ubiquity of ruching, again, noting the absence of a properly formulated plea of commonplace, I am prepared to accept that there is sufficient originality in the Claimant’s designs for design right to subsist in the features I have identified.