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

The Claimants helpfully provided a side-by-side comparison of the First Label with the relevant part of the Work, with colour-coding to demonstrate some of the similarities. The image used for the First Label is actually of the side of the case in which 6 bottles of wine were packaged, but it is relevantly identical to the First Label, so nothing turns on that.

Counsel for the Claimants submitted that the similarities between the First Label and the Work are “more than sufficient” to engage the presumption that the Work has been copied: Designers Guild Limited v Russell Williams Textiles) Limited [2000] 1 WLR2416 per Lord Millett at 2425 E-G. I accept that submission. There is no doubt in my mind that the First Label is clearly a copy, albeit a copy that has been modified in some respects. There are particular features of the Work (some of which are highlighted above) which are identically reproduced, and they are arranged in space identically. The First Label is clearly a copy of part of the Work.

In my judgment, the First Label is also very clearly a substantial reproduction of the Work. Adopting the words of Zacaroli J (as he then was) cited above by Edwin Johnson J, the First Label “has taken that which conferred originality on [Found the Found’s] copyright work (or a substantial part of it)”. To answer item 3 in the List of Issues, the First Label is a copy of a substantial part of the Work.

I should add for the benefit of Mr Patch that it does not matter that the First Label was designed by an independent designer, Mr Milia, on behalf of BSH. There was no evidence from Mr Milia, and no disclosed documents relating to his instructions to produce the First Label. But it does not matter. The acts of infringement are said to be the issuing of copies of the Work to the public, and the importing, offering for sale and sale of the Products – it therefore does not matter who actually undertook the relevant copying in the first place.