KF Global Brands v Lead Wear [2023] EWHC 1303 (IPEC)

2 June 2023

Joshua Marshall successfully represented the Defendants (collectively, “Lead Wear”) in an infringement of UK unregistered design right (“UKUDR”) action brought by the Claimant (“KF Global”). KF Global alleged subsistence of UKUDR in a design of cargo trousers dated 13 April 2015 (the “BKS-001 Design”), which it claimed had been infringed by three versions of trousers made for Lead Wear in Bangladesh (the “Lead Wear Trousers”). Disputing the originality of the BKS-001 Design, Lead Wear alleged that it had been copied from an earlier “Aldi Design”. Lead Wear also disputed the allegations of infringement.

Recorder Douglas Campbell KC reviewed the cross-examination of KF Global’s director and concluded that his evidence on the relationship between the BKS-001 Design and the Aldi Design was confused. The judge found that i) the BKS-001 Design, as recorded in an allegedly contemporaneous design drawing, did not accurately record the version of KF Global’s trousers that existed as at April 2015 (the “BKS-001 Trousers”); and ii) the BKS-001 Trousers were, in any event, a copy of the Aldi Design with only a minor amendment made to a pen pocket. Hence, despite the bar to establishing originality in the copyright sense being a low one, the BKS-001 Trousers were not original in that sense.

On primary infringement, which requires an act to be done in the UK, the judge held that, even if he had been wrong on originality, the Lead Wear Trousers had been made in Bangladesh and that any authorisation to make them was to make them in Bangladesh, hence there was no primary infringement.

This case is a rare example of a finding of lack of originality in the copyright sense of a UK unregistered design.

View judgment