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

The Third Label was another attempt to get further away from the Work. I am satisfied that it was a copy of the Work. The question I need to decide is whether it constitutes a substantial reproduction, or whether, as counsel for the Claimants conceded it could, it has moved far enough away.

In their opening written submissions, the Claimants provided a comparison of the Second Label and the Third Label. Once again, this is not the test. Rather, I must look at the Third Label and assess whether it is a substantial reproduction of the Work. Putting the Third Label next to the segment of the Work said to be copied for the First Label looks like this:

Whilst I have put those two images side-by-side, I have also considered the whole of the Work in my analysis.

Again, it is apparent that none of the elements relied on in relation to substantial part for the First Label is present in the Third Label. The Third Label is further away from the Work than the Second Label.

The Claimants relied on the same three bases of infringement as for the Second Label. First, they relied on the feature analysis that I have set out above. My conclusion on that analysis is the same as for the Second Label – it does not lead to a finding of reproduction of a substantial part.

Second, the Claimants relied on the following three segments of the Third Label which are said to reproduce parts of Ms Martin’s expression of her intellectual creation in the Work, namely her loops, lines and dot-work:

With the Second Label, the Claimants provided me with 16 excerpts from the Work which were said to have been reproduced in the Second Label. Here, I was given three examples from the Third Label, which were said to be present in the Work. Again, doing the best I can, I cannot find these elements in the Work. The Work undoubtedly includes loops, lines and dot-work, but not these loops, lines or dot-work.

It is clear to me that the Third Label is far enough from the Work not to include any of Ms Martin’s intellectual creation. The Claimants have not pointed to any element of the Work (no matter how small) that has been copied exactly. The Third Label and the Work look different, and the various elements of it each look different to the elements of the Work. Ms Martin’s intellectual creation has not been taken. The Third Label is not a substantial reproduction of the Work. The Third Label does not infringe Found the Found’s copyright.