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Friday, 5 September 2003


A May 2003 case has suddenly popped up on the Lawtel subscription-only service. Lambretta made a French rib knit track top which was designed as fashion wear with a "retro-vintage" theme. The track top had a blue body and red raglan sleeves with two white stripes along the sleeves. Teddy Smith (the sole UK distributor for French clothes designer and producer Teddy Smith SA) and UK fashion chain Next each separately produced track tops that looked like Lambretta’s. Lambretta sued for infringement of pre-harmonisation UK design right in the track top itself and for infringement of copyright in drawings and specifications of the track top. Teddy Smith and Next denied infringement.

In the High Court Mr Justice Etherton dismissed the action. Lambretta had no design right in the application of two-dimensional colours to a three-dimensional garment. Nor could Lambretta sue for copyright infringement. Section 51 of the Copyright, Designs and Patents Act 1988 did more than merely exclude from copyright protection those designs that were protected by design right: where an article was copied which was made to a design, protection could only be found in design right, the registered designs legislation and ordinary actions in common law or equity. Accordingly even where there was deliberate copying of the garment, no copyright infringement claim could be brought.

The IPKat notes that, in theory, the design of clothing is protectable in the UK by copyright, design right and elements of trade mark and passing off law. In practice, if you design a new garment, the best advice is to keep your distribution channels well oiled and pitch your products at a price that makes knock-offs commercially less attractive and turn a blind eye to all copies that are not actually made to look as though you made them. That way, you at least save your legal bills.

Track tops here and here
Dance to Lambretta here
Ride a Lambretta here
Unregistered US trade dress law on the copying of clothes here

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