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

If I am wrong about the existence of copying, I need to assess whether the alleged infringements are made exactly or substantially to the Claimant’s designs. As noted above, the high level at which the designs are described makes it easier for the Claimant to succeed on this part of her case. In the circumstances I will therefore deal with the allegations briefly.

In relation to Design 1, there was no real attempt by the Defendants to suggest that, if valid, their bikini was not made exactly or substantially to the Claimant’s design. I agree. The bikini tops are extremely similar.

For Design 2, the only features which I have found can sustain the right are the “puff sleeve” connected to an “extended cuff” and where the cuff is approximately the same length as the puff sleeve. In the alleged infringement shown in Annex 3, the cuff is much shorter. For this reason I find that that product was not made exactly or substantially to the Claimant’s design.

However, Article 2(ii), the Pretty Little Thing version shown in one of the photos in Annex 9 to the Amended Particulars of Claim, does have a cuff which appears to be the same length as the sleeve. Had the Claimant been permitted to rely on this garment as a matter of pleading, I would have found that it was made exactly or substantially to the Claimant’s design:

The features which I have held to be relevant to Designs 3 and 4 are:

Although it is difficult to make out some of the details of the alleged infringements from the figures relied on by the Claimant, these details are minor. Further, the chevron is less pronounced in the alleged infringements. I am prepared to hold that overall the Defendants’ articles are made exactly or substantially to the Claimant’s design.

Finally, in relation to Design 5, I must consider the following features: a pair of ruched leggings with a “small” chevron at the top, and with ruching only present in the top half of the area between the crotch and the waistline.

In the annotated alleged infringement in Annex 2 the ruching appears to run all the way down to the crotch of the leggings. On this basis I had considered that there was a sufficient difference such that the article was not made exactly or substantially to the Claimant’s design. However, after circulation of my draft judgment, a better reproduction of the picture in Annex 2 was provided by the Claimant which shows that that ruching is only built in to the top half of the area between the crotch and the waistline. I find that all the alleged infringements of Design 5 (if the Claimant had been permitted to rely on the other alleged infringements) were made exactly or substantially to the design.