IP in the Fashion Industry 2015: Part 2

Next to speak at today's IP in the Fashion Industry 2015 conference was solicitor Rosie Burbidge, updating us on copyright and design developments in the fashion field. Rosie began with a paean of well deserved praise for the Intellectual Property Enterprise Court and its Small Claims Track, characterised by a no-nonsense approach and strong case management.

The first case Rosie looked at in detail was John Kaldor v Lee Ann Fashions (mentioned in the NIPC blog here), in which Kaldor found in M&S's Per Una collection, a dress  (illustrated, below left) bearing a pattern of a kind which he had disclosed to Lee Ann under a non-disclosure agreement (illustrated, above, left). The case, said the judge in the case management conference, would depend on whether it would be possible to establish that there had been copying: copying might be complete and identical [as in Art & Allposters, discussed by Tom Ohta on the IPKat here], "exact" or "altered / inexact", as in Designers Guild v Russell Williams, here.  On the facts, Kaldor's case failed since the prima facie case in favour of copying was weak and there was evidence of independent design.

Next case under review was DKH Retail v H Young came next [it's noted here on the Class 99 design law blog], this being a design infringement case involving a gilet.  Many arguments were raised and discussed here, but some of this case's most interesting aspects involved damages and the IPEC's reluctance to award anything that might look like bonus damages.

Rosie concluded with a review of the state of 3D printing and its potential impact on the protection (and infringement) of design rights.  "Is this the end of 3D objects being protected?", she asked, offering the answer "no" -- at any rate with the present state and expense of technology.

The final speaker before lunch was Chris Hoole, on a spin-off topic from the epic litigation between Interflora and Marks & Spencer over keywords [for a flavour of which, check out the IPKat here] -- the concept of "negative matching".   This means that, where a customer purchases a broadly used word as a keyword, that customer can focus search responses by blocking out search results that contain unwanted terms [this Kat wonders if computer and media giant Apple has negatively matched search results for "Apple" so as to exclude "Golden Delicious", "Russet", "Worcester Pearman" and other apples of his choice].

In the Interflora case, part of the allegation of trade mark infringement was that Marks & Spencer did not employ negative matching when using, among other words and generic terms, the keyword which also constituted its trade mark Interflora.  This had the effect of displaying an M&S advertisement whenever a generic term plus 'interflora' or a similar spelling was used as a search term.

Very little has been written academically and professionally about the effect of the Interflora ruling on negative matching, which can result in trade mark infringement even when there is no intention (not that intention is required for a finding of infringement).  Likewise, little has been written about the possible requirement a negative matching of mis-spelled versions of generic words also be sought.