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

The CAD in the Tech Pack includes instructions that the NastyGal bikini top should be a "RUCHED BIKINI TOP SHAPE TO BE AS GARMENT IMAGE 1" with the bottoms as GARMENT IMAGE 2. Garment Image 2 was an image taken from Pinterest – but for the purposes of this dispute only Garment Image 1 matters. Both are shown below:

Pausing there, note that the instructions sent to the manufacturer were apparently not to create a bikini top resembling the Claimant’s Design 1 with the top tie between the panels. Instead, a more conventional bikini top was sought, both in the general CAD drawing and the specific ones.

Further, Mr Kershaw recorded that Ms. Hale had confirmed that she has never previously heard of Ms. Edwards, Cwtchy Cwtchy or seen any of the Claimant's designs, including the First Design.

I also note in passing that the design drawn by Ms. Hale resembles more closely the Claimant’s 2011 bikini top designs prior to her arriving at the alternative Design 1 in 2016. Further, in 2016 the Claimant sought to rely on these earlier 2011 designs in a complaint against the Defendant’s sales of bikinis similar to the design which Ms. Hale had sought from the Chinese manufacturer. This complaint is no longer pursued.

All of this serves to emphasise the interchangeability between the various designs, which are all variations created using the same basic fabric panels and ties.

Consistent with Ms. Hale’s account given through Mr Kershaw, the tiger print bikini first went live on NastyGal's website (apparently on 27 July 2022) in the following form i.e. as instructed by Ms. Hale:

However, the solid blue version appeared earlier and in a different form, which is the basis for the Claimant’s complaint. Instead of appearing in the same design as the tiger print, it appeared from at least 15 June 2022 (as captured by the Claimant) in the three tie design resembling Design 1 (requiring it to be put on over the head of the model, as noted above):

The Defendants’ evidence is that this was a mistake which occurred during the photo shoot. Mr Kershaw was unable to tell me how the garment would have been delivered by the manufacturer (i.e. with ties already installed, or with ties separate from the breast fabric which then needed to be threaded by the user).

It is said that when Ms. Hale noticed this she asked for the garment to be sent back to the photographic studio and alternative photos to be taken. Internal documents were disclosed recording a request for photos for a garment with the same item number and description on 23 June 2022 (i.e after the alleged infringing design went live). Mr Kershaw’s evidence was that the bikini was rephotographed and checked out on 30 June 2022. He explained “I understand from Ms Hale that styling errors do occasionally happen when there are multiple ties to a product or different ways of wearing a product.”

The resulting image (which is not alleged to infringe Design 1) was then added to the Seventh Defendant’s website:

It is not clear whether at the same time as the above image was added to the website, the original image was removed or left up.