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

Copyright infringement is governed by s.16 CPDA 1988. An artistic work will only be infringed if a substantial part of the work has been copied see s.16(3)(a). Arnold LJ summarised the position on infringement in Lidl at [43] referring to both Infopaq and THJ.

The Defendants admit selling the Defendants’ Bags. The question in relation to the Defendants signs and Bags is whether they have reproduced a substantial part of the Logo given the limited scope of the protection to which NC-S is entitled. This requires consideration of what parts of the Logo have been copied and whether they are the parts that provide it with the benefit of copyright protection. It is a qualitative assessment not quantitative.

For the reasons set out above I am satisfied that ET and NT had been aware of the Claimants’ Bag and the Logo from at least 2017 given their own evidence. I have not accepted their evidence about their own independent design processes. I do not accept ET’s evidence in relation to the source of his inspiration and when and how he designed the Notting Hill Word Sign including the use of the word Shopper. I consider that the use of Shopper was a deliberate attempt to distinguish the Notting Hill Word Sign from the Logo. His attempts to seek to differentiate the Notting Hill Word Sign and to justify the design by reference to other influences had an air of unreality. I have not accepted his evidence that he was unaware of the Claimants’ Bag or that he had been trading in the Defendants’ Bags and/or using the Notting Hill Word Sign since sometime in 2017.

The Camden Town Shopping Bag Sign undermines the evidence that Shopper was chosen because it reflected the use of the bag in Notting Hill. ET accepted that the Camden Town Shopping Bag could be more similar to the Claimants’ Bag but denied that he thought he could use it in Camden because there would be clear water between it and the Notting Hill Shopping Bag. Instead he said he chose the style because it was attractive, and it was just a design and purely descriptive. This came across as entirely contrived and undermined his explanation of the use of Shopper in Notting Hill.

I accept NC-S’s evidence that she acted as soon as she found out about the Defendants’ Bags in January 2023. She acted immediately.