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Summary Judgement refused for Betty dress.

The Patents County Court have refused a written request from Dahlia the owner of a dress called the Betty Dress. It claimed unregistered design right and European Community unregistered design right relating to the dress. The Claimant also claimed that the Second Defendant was personally liable for the acts of his company, the First Defendant.

Judge Birss QC agreed that the “defendants’ version is plainly virtually identical to the Betty Dress. The defendants’ position is that they do not admit the subsistence of the rights claimed nor do they admit Dahlia’s title. In response to the allegation of flagrancy the defendants contend they had no reason to believe that the dress was copied from or infringed any rights in the Betty Dress. Thus as regards the Betty Dress, the only defence to infringement itself (leaving aside flagrancy) is a non-admission of subsistence and title.”

CPR Part 24 r. 24.2 provides:

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:

(a) it considers that –

(i) claimant has no real prospect of succeeding on the claim or issue or

(ii) defendant has no real prospect of successfully defending the claim or issue and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

The Judge was keen to grant summary judgement but declined “Accordingly I cannot give summary judgment for Dahlia in relation to the Betty Dress. It would be wrong to do so.”

This was because the defendants raised an issue over entitlement and if proven then the claim would fail. The Judge however was not expecting the Defendant to prove his case and therefore made the following order:-

“In my judgment this is an appropriate case for a conditional order, bearing in mind the strength of the defence and proportionality. The order I will make is one requiring the defendants to pay a sum into court within 14 days of the date this judgment is handed down. If that sum is not paid into court in the time specified then the defence relating to the Betty Dress will be struck out. The sum I will require to be paid is £10,000. The purpose of that sum is to act as fair security for the claimant’s costs in relation to the Betty Dress including the costs of this application, bearing in mind the Patents County Court costs scale in Section VII of Part 45, and also to cover the possible damages to be awarded. If the parties’ lawyers cannot agree an order embodying the outcome of this application I will settle the order when this judgment is handed down.”

If you’re interested in patent Infringement or any other intellectual property rights and would like to find out more, please call Michael Coyle on 0800 0862 0157 or email for a free no obligation chat.

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