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Edinburgh Woollen Mill found to have infringed ex-supplier’s copyright in garments

Subject: Intellectual property/Copyright

Source: British and Irish Legal Information Institute (BAILII)

Response Clothing Limited v The Edinburgh Woollen Mill Limited

[2020] EWHC 148 (IPEC); Hearing dates: 3-4 December 2019

For three seasons between December 2009 and 2012, Response Clothing Limited (Response) supplied The Edinburgh Woollen Mill Limited (EWM) EWM with ladies tops made of a jacquard fabric in a 'wave arrangement' (Wave Fabric). Jacquard fabrics display a design woven into the fabric itself, rather than being stamped, printed, or embroidered on top of the fabric.

In 2012 Response sought to increase the price of the tops. The new price was rejected by EWM. EWM then supplied a sample of Response's top or a swatch of Response's fabric to other garment suppliers following which two suppliers made and supplied similar garments to EWM.

Response issued a claim in the Intellectual Property Enterprise Court (part of the High Court) that EWM had infringed its copyright in the design of the Wave Fabric garment.

The court ruled that:

* the garment design was an original work of artistic craftsmanship within the meaning of the Copyright Act 1988 s.4(1)(c) and thereby benefited from copyright;

* it was apparent that the other suppliers had copied Response’s Wave Fabric due to the similarities between the Wave Fabric on the one hand and each the other suppliers’ fabrics on the other;

* as the reseller of fabrics which it had reason to believe were copies of the Wave Fabric, EWM had infringed Response’s copyright.

[Original text of the case report supplied by BAILII gratefully acknowledged. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0
Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

Legaleze comment


In this case, the judge interpreted the UK Copyright Act in a particular way so that it would conform to the relevant EU legislation i.e. Directive 2001/29. This was done as required by the so-called ‘Marleasing principle’ which requires the UK courts to interpret legislation so far as is possible in conformity with EU (see Marleasing SA v La Comercial Internacional de AlimentaciĆ³n SA (Case C-106/89) EU:C:1990:395; [1990] ECR I-4135).

Effect of Brexit: the Marleasing principle will continue to be applied by the courts in relation to EU during the Brexit ‘Implementation Period’ (1 February to 31 December 2020). After that, the principle will still be applied but only to EU ‘retained law’ i.e. EU law as at 31 December 2020 which is being incorporated into UK law). The Supreme Court however will not be bound by that principle. This is the effect of the European Union (Withdrawal) Act 2018 as amended by the European Union (Withdrawal Agreement) Act 2020.


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