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1 September 2012

Dahlia Fashion Co Ltd v Broadcast Session Ltd and Karmesh Dhoj Joshi [2012] EWPCC Civ 23

The claimant, Dahlia Fashion Co Ltd, a company who produce designs for clothing sold throughout the UK, claimed Broadcast Sessions Limited and one of its directors, Karmesh Joshi, infringed its unregistered design rights when they sold copies of two of Dahlia’s garments. The pieces refer to the Dahlia Betty Dress and the Dahlia Skort Playsuit. A skort relates to a garment resembling a skirt but is in fact a pair of shorts.

The defendants addressed the playsuit, raising arguments about the scope and subsistence of Dahlia's rights in the skort playsuit and the differences between the Dahlia skort and the version sold by themselves.

Dahlia applied for a summary judgment but was rejected. The defendants' answered to the application for summary judgment that the issue of the betty dress cannot be separate from the skort. Both these pieces allegedly to have been created by a designer called Katherine Graziano.

As the two garments were designed by Graziano, and the defence relating to the skort playsuit went to the subsistence and ownership of design right, Judge Birss felt that this was an issue which had to be explored at trial and summary judgment was refused.

Broadcast Session Ltd found what they contend is an earlier garment of a similar design to the skort. The defendants declared there would be a real prospect, at trial, they could disprove the whole of the design of the skort was created by Graziano, rather it contained minor changes to an existing design emanating from China.

The defendants also argued should this be proved, it would not only undermine Dahlia's case on the design of the skort, but also undermine the case about the betty dress as it stems from the same designer.

Dahlia argued there is simply no defence in relation to the betty dress, additionally they also contended the attack on the skort as being not well founded.

Judge Birss sympathised with Dahlia and asserted the defendants’ dress is virtually identical to the betty dress. Birss also regarded the defence to the skort as arguable but not strong. Even if the defence were to succeed, it would not necessarily mean the result would impact the betty dress.

In such circumstances the court made a conditional order requiring the defendants to pay a sum of money into court or to take a specified step in relation to their defence, and provides that the defendants' defence in relation to the betty dress will be struck out if not complied with.

The order required the defendants to pay a sum of 10,000 into court within 14 days of the date of the judgment being handed down. If the sum is not paid in the time specified then the defence to the betty dress will be struck out.

This article has been written by Jeremy Liu whilst on work experience. James is studying law at Southampton Solent University.

Michael Coyle is a Solicitor Advocate and can be contacted at michael.coyle@lawdit.co.uk. Lawdit Solicitors is a commercial law firm based in Southampton


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.



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Article Published/Sorted/Amended on Scopulus 2012-10-11 09:05:12 in Legal Articles

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