Claim No: IP-2022-000053 - [2025] EWHC 1827 (IPEC)

Infringement is alleged under sections 18, 22, 23(a) and 23(b) of the CDPA. The relevant acts were largely admitted or are apparent on the face of the documents before the Court. I can therefore deal with these issues briefly.

Section 18 of the CDPA relates to issuing copies of the work to the public. In the United Kingdom, this was done by GM Drinks. GM Drinks has therefore infringed copyright in the Work by issuing to the public the First Label. This appears to have occurred for the first time on or around 5 February 2020. Had I found that the Second and Third Labels infringe (which I have not), then GM Drinks would have been liable for issuing copies to the public in the United Kingdom.

Neither BSH nor Mr Patch issued the First Label Products to the public and so cannot be directly liable under section 18 of the CDPA (I deal with joint tortfeasorship below).

Section 22 of the CDPA relates to importing into the United Kingdom “an article which is, and which he knows or has reason to believe is, an infringing copy”. All importing into the United Kingdom was undertaken by GM Drinks.

Section 23(a) of the CDPA relates to possessing in the course of business “an article which is, and which he knows or has reason to believe is, an infringing copy”. GM Drinks possessed the First Label Products whilst they were in the United Kingdom.

Section 23(b) of the CDPA relates (relevantly) to selling, or offering or exposing for sale, “an article which is, and which he knows or has reason to believe is, an infringing copy”. Selling, offering and exposing for sale of the First Label Products were undertaken in the United Kingdom by GM Drinks.

Infringement under sections 22, 23(a) and 23(b) therefore depends on whether GM Drinks knew, or had reason to believe, that the First Label infringed. Mr Patch gave evidence that he had not heard of Ms Martin, and was not aware of the Work, prior to her drawing it to his attention. This was not challenged in cross-examination, and I accept it to be the case. GM Drinks has admitted that Ms Martin gave notice of her ownership of copyright on 13 April 2020. The law provides a short period of time to enable a defendant to evaluate the facts that have been presented. Given the similarities between the First Label and the Work, and Ms Martin’s helpful coloured comparison document provided by email to Mr Patch on 13 April 2020, in my judgment, GM Drinks, from shortly after that date, knew or at the very least had reason to believe that the First Label was an infringing copy of the Work.

Thus, GM Drinks is not liable under sections 22, 23(a) or 23(b) for any First Label Products imported, possessed in the course of business, sold or offered or exposed for sale prior to 13 April 2020, but is liable for copyright infringement for First Label Products relevantly dealt with from shortly after that date.

I have found that the Second Label and Third Label do not infringe Found the Found’s copyright. If I am wrong in that, then the issue arises as to whether GM Drinks knew or had reason to believe that the Second and Third Label infringed for the purposes of sections 22, 23(a) and 23(b). I have had the advantage of a day and a half of argument from senior specialist counsel, and I have reached the conclusion that the Second and Third Labels do not infringe. GM Drinks had no such advantage. Further, as I have set out above, GM Drinks was advised by a specialist practitioner that the Second Label did not infringe the Work (and the Third Label is, on its face, further away from the Work). Thus, I am unable to conclude that, had I found that the Second and/or Third Labels was a substantial reproduction of the Work, GM Drinks would have had reason to believe that the two labels infringed the Work – particularly given that they had received legal advice that the Second Label did not infringe.

It was not alleged that Mr Patch was primarily liable for copyright infringement. BHS undertook no relevant acts in the United Kingdom and is therefore not primarily liable for copyright infringement.