Design Right and Copyright

Dahlia Fashion Co Ltd v Broadcast Session Ltd and Karmesh Dhoj Joshi [2012] EWPCC Civ 23

The claimant, Dahlia Fashion Co Ltd, a company who produce designs for clothing sold throughout the UK, claimed Broadcast Sessions Limited and one of its directors, Karmesh Joshi, infringed its unregistered design rights when they sold copies of two of Dahlia’s garments. The pieces refer to the Dahlia Betty Dress and the Dahlia Skort Playsuit. A skort relates to a garment resembling a skirt but is in fact a pair of shorts.

The defendants addressed the playsuit, raising arguments about the scope and subsistence of Dahlia’s rights in the skort playsuit and the differences between the Dahlia skort and the version sold by themselves.

Dahlia applied for a summary judgment but was rejected. The defendants’ answered to the application for summary judgment that the issue of the betty dress cannot be separate from the skirt. Both these pieces allegedly to have been created by a designer called Katherine Graziano. As the two garments were designed by Graziano, and the defence relating to the skort playsuit went to the subsistence and ownership of design right, Judge Birss felt that this was an issue which had to be explored at trial and summary judgment was refused.

Broadcast Session Ltd found what they contend is an earlier garment of a similar design to the skirt. The defendants declared there would be a real prospect, at trial, they could disprove the whole of the design of the skirt was created by Graziano, rather it contained minor changes to an existing design emanating from China.

The defendants also argued should this be proved, it would not only undermine Dahlia’s case on the design of the skort, but also undermine the case about the betty dress as it stems from the same designer.

Dahlia argued there is simply no defence in relation to the betty dress, additionally they also contended the attack on the skirt as being not well founded.

Judge Birss sympathised with Dahlia and asserted the defendants dress is virtually identical to the betty dress. Birss also regarded the defence to the skort as arguable but not strong. Even if the defence were to succeed, it would not necessarily mean the result would impact the betty dress.

In such circumstances the court made a conditional order requiring the defendants to pay a sum of money into court or to take a specified step in relation to their defence, and provides that the defendants’ defence in relation to the betty dress will be struck out if not complied with.

The order required the defendants to pay a sum of £10,000 into court within 14 days of the date of the judgment being handed down. If the sum is not paid in the time specified then the defence to the betty dress will be struck out.

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