IP-2023-000120 - [2025] EWHC 1793 (IPEC)

The artistic threshold is not high, but NC-S has to demonstrate that she made creative choices in relation to the Logo.

Dr Muir Wood submits that NC-S cannot claim any creative choices in the order of the words within the Logo and that the words themselves must be ignored when considering the artistic copyright subsisting in the Logo because it would not make sense if the words were reordered. This he says limits the creative choices if any in relation to the layout of the Logo.

He therefore submits that the creative choices made by NC-S are limited. He suggests that all she has done is chosen one layout from a series created in a computer using basic word processing. He submits that the nature of the Logo prevented it from being an artistic work. NC-S was constrained by the words and that simply formatting the words was not sufficient to overcome even the low threshold for artistic copyright.

Whilst he accepted that that it may have become distinctive in 2010/2011, he does not accept that would create copyright in the Logo.

NC-S’s evidence explained the choices she had made in relation to the layout. She emphasised the use of lower-case “t” at the start of “the”, the full stop, the left justification and the 4 rows of text as well as the bold modern fonts.

Dr Muir Wood submitted that the use of the arial font and the capitalisation of the name Notting Hill itself are banal whilst the left justification was simply a technical constraint.

Conversely, Mr Marshall argued that despite being a simplistic graphic work the Logo still attracted copyright protection relying on Lidl as an example of a simplistic logo which nonetheless attracted copyright. He argues that the Logo was unique and that the myriad of alternatives in the March 2010 design document (even if not showing the precise version used for the Logo) only emphasised the originality of the Logo and the creativity involved in its design.

The very same choices that the Defendants say are banal are said to be the distinctive and unique choices made by NC-S.

Arnold LJ confirmed in THJ v Sheridan [2023] EWCA that the correct test for originality was as set out in Infopaq but that the threshold for originality was a low one. There needs to be some room for creative freedom but even a simple logo such as the one here can attract protection. Arnold LJ explained that even where the degree of visual creativity was low it did not imply an absence of copyright instead it affected the scope of the protection conferred by the copyright. The protection in such a case may be correspondingly narrow so that only a close copy would infringe (see THJ)

Here adopting that approach I find that despite the limitations of the evidence I am satisfied that the various components of the Logo relied upon by NC-S do demonstrate some creative freedom of choice in the way in which they are put together to create the Logo.

The lower-case t, the full stop and the use of the left justified 4 lines of text were each the result of creative choices. None was necessary, the Logo could have had a capital T which would have been more usual if using sentence case, it could have been justified in the centre, spread over 3 lines or 5 lines and the full stop was not necessary either. At some point the dot over the “i” in shopping had been removed which added to the creative choices that had been made. The font is said to have been chosen to be bold and modern. Arial may appear to be banal but given the myriad of fonts available the choice of a particular font with a particular idea in mind coupled with the other aspects of the design adds to the creative choices which NC-S made when deciding which design to use for the Logo.

However, I do not consider that the Logo was unique or demonstrated a high degree of creativity. I agree with the Defendants that there were natural limits constraining her use of the five words including the use of a place name, Notting Hill, which naturally limited the extent of any creativity when using only five words in total.Whilst NC-S had made choices about certain elements of the Logo that were not restricted by technical constraints other parts of the Logo for example the use of the place name Notting Hill, as two words out of the five significantly reduced the elements of creativity.

Although I accept that the use of the lower-case t, the full stop at the end and the absence of the dot on the i coupled with the left justification were ultimately an exercise of creative choices so as to stamp the Logo with her personal touch, I find that the degree of creativity was low.

Although NC-S is the author of the Logo and I am satisfied that she has artistic copyright in the Logo the level of creative freedom used in creating it was low which then affects the level of copyright protection to which it is entitled which is correspondingly low. I find that the protection to which the Logo is entitled is limited in scope such that only a close copy would infringe the Logo (see THJ at [27]).