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

At least one of the alleged infringing versions of each of these designs was created within the Defendants (as opposed to by a third party). In each case there is no documentary evidence one way or the other in relation to the derivation of the alleged infringements (apart from in two respects in relation to the alleged infringements of Design 5).

I accept Mr Kershaw’s evidence about the routine deletion of records and emails in the Defendant companies, and I also note the very large number of documents which must be generated to support the enormous turnover in designs offered by the Defendants. So I am not willing to make adverse findings about copying by the Defendants just because the records have not been disclosed. Further, I note that adverse documents were turned up as a result of the disclosure exercise, so I reject any suggestion that material has been deliberately destroyed or withheld.

Further, as noted, my second to fifth reasons given above in relation to Design 1 apply equally to the other designs. The probability of the Claimant’s designs being used as inspiration by the Defendants is very low given the passage of time and the reach of the Claimant’s feeds. Moreover, the low originality of the designs means that it is much more likely that any similarities arose as a matter of happenstance given the very high volume of goods and limited design space inherent in producing garments to fit the human body. So once again on the balance of probabilities I find that copying did not take place.