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

The Claimant has sought to rely on multiple infringements for Designs 2 to 5. The Defendants say that this is contrary to the direction of the Court made in an order dated 20 March 2023 whereby HHJ Hacon ordered in §2:

The Claimant shall have permission to file and serve within 28 days of this Order Amended Particulars of Claim. The Amended Particulars of Claim, if filed and served, shall plead infringement of no more than five (5) designs in which unregistered design right subsists and no more than one (1) article alleged to infringe each design relied on. The Claimant shall plead no other intellectual property right.

Those pleading the Claimant’s case at the time have attempted to circumvent this by trying to group each of the alleged infringements with words such as “For the avoidance of doubt, the First, Sixth and Eighth Defendants have offered for sale the same design being the Leather Front Ruched Leggings [Design 5] save in different colours or materials”. The alleged different materials include material which is not leather.

The problem I face is that there were at least two further hearings about the state of the pleadings, resulting in orders dated 26 September 2023 and 17 May 2024. There was a dispute between the parties before me as to whether the issue of the additional alleged infringements had been raised by the Defendants and/or dealt with by HHJ Hacon at these hearings. I do not have transcripts of the hearings and I was not addressed in detail as to what was said at each of them; there simply was not time in the course of an already compressed trial to deal with this.

In summary, the number of alleged infringements appears to be in excess of those permitted by §2 of the March 2023 Order. At the same time there does not appear to have been a successful attempt to strike out the pleading. It also appears to be disproportionate to attempt to carry out an archaeological exercise to try to work out who said what or who should have said what at one of the earlier hearings.

I consider that the Claimant should be held to one example each of the alleged infringements. Indeed, this is how the Amended Particulars of Claim deals with them – at Annexes 17-21, which are reproduced as Annex 2 at the end of this judgment. I will therefore rely on those annotated alleged infringements. However, in case it matters I will also deal with the additional items and pick up any factual differences in the following sections on copying and similarity. Where there are multiple alleged infringing articles I refer to them as e.g. alleged infringing article 5(iv) to represent the fourth version of the alleged infringement of Design 5.