DKH Retail Ltd v H. Young (Operations) Ltd

The Intellectual Enterprise Court has given judgment for the claimant in an action for infringement of UK and Community unregistered design rights in two designs for mens’ gilets.

The ClaimantÂ

Hacon J granted a claim for secondary infringement of UK and Community unregistered design rights in two designs for mens’ gilets against a defendant who imported and sold infringing gilets. He held that infringement of the UK design rights began 14 days after the defendant received the claimant’s letter before action, at which point the defendant was deemed to have known that the gilets infringed the claimant’s rights.

The Community design infringement however began as soon as the defendant started importing and selling the items, as there is no corresponding requirement of knowledge under Community Design Law.

The Defendant argued that the individual features of the first design were commonplace. The judge rejected this and added that the evidence failed to show that the arrangement of the features was commonplace.

The Defendant also challenged the Claimant’s title to one of the designs, arguing that Article 27 of the Community Designs Regulation 6/2002/EC only operated to permit the assignment of an existing design right, nor future rights, so that the assignment relied on by the Claimant did not in fact give it the rights it sought to rely on. The judge rejected this argument, saying that section 223 of the CDPA 1988 applied to make such assignment perfectly possible.

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