The claimant was the designer, manufacturer and seller of ceramics, especially the successful collection ÂRed BerryÂ tableware range produced in 2002.
In 2013, an employee of the claimant noticed tableware items on sale at a UK store bearing a design very similar to Red Berry under the name “Red Blossom”. The items had been created in China.
The first defendant in this case owned the store in which the offending ceramics were being sold whereas the second defendant ordered their manufacture in China.
The defendants stated that the ÂRed BlossomÂ collection had been designed by an employee of the second defendant, who admitted to have attended showings of the ÂRed BerryÂ collection as well as reading of its success but denied being influenced by it.
- Â Whether Red Blossom was a copy of Red Berry and, if so, whether it was a copy in substantial part
- If the defendants were liable for copyright infringement, the court should exercise its discretion to allow an account of profits
- If so, costs were deductible from the defendants’ gross profits in determining the sum due to the claimant.
In the absence of direct evidence of copying, the first step when assessing an allegation of copyright infringement was to consider whether the claimant can highlight clear similarities between the copyright work and the defendant’s work the stronger the evidence presented by the claimant in regards to the copying, the harder it is for the defendant to argue against the claim.
If copying was established, the claimant had still to show that his design was copied in substantial part, but that conclusion would almost inevitably follow from the finding of copying
The similarities between the Red Berry design and the Red Blossom design were obvious. It was almost inconceivable that Red Blossom design should be of the same shade of red as that of Red Berry unless the latter was copied or, alternatively, that there was a very convincing explanation for the coincidence which was not given
Â Although she had no recollection of being influenced by Red Berry, it was possible that she had forgotten such influence or successfully put it out of her mind. It was likely that Red Berry had played a part in the creation of Red Blossom. The designs appearing on the defendants’ tableware were indirect copies of the claimant’s copyright work. The design was undoubtedly copied in substantial part.
Â It followed that the defendants had infringed the claimant’s copyright by the importation and sale of their Red Blossom range.
An account of profits made by an infringer was an equitable remedy and the court had discretion whether to order it it might be refused if the infringer was entirely innocent.
Â The infringement of copyright in the instant case was secondary infringement by reason of importation and sale. That required the claimant to establish that the defendants had known or had reason to believe that the Red Blossom dinnerware was infringing copies of the claimant’s copyright work.
The courts held that the infringement could not be Âentirely innocentÂ due to the nature of the copying.
The defendants were jointly liable for their collective profit of Â£31,703.01. The claimant was also entitled to interest on that sum.