John Kaldor Fabricmaker UK Ltd v Lee Ann Fashions Ltd [2014] EWHC 3779 (IPEC) is an Intellectual Property Enterprise Court decision of Judge Richard Hacon on 21 November in which a claim for copyright and unregistered design infringement failed where the court had no good reason to reject the defendant's evidence that the fabric it had designed was created without sight of the claimant's fabric and without sufficient instructions that would have amounted to indirect copying -- particularly since the similarities between the designs were not sufficiently compelling to infer that there had been subconscious copying. The claimant's design is shown on the right, while the alleged infringing design is below, left.

Everything turns on the evidence. The first stage, said the judge, is to consider whether the claimant has established a prima facie inference of copying by reason of similarities between the works. This prima facie inference might be rebutted by the defendant's evidence of independent design. However, the stronger the prima facie case, the more cogent the defendant's evidence had to be to rebut the inference,

If there was no finding of copying, there could be no infringement. If there was a finding of fact that there had been copying, the next stage was to consider whether copying was done in relation to the work as a whole or any substantial part of it.

In this case, there was a prima facie possibility that there was copying; that possibility was neither strong nor negligible. It followed that the defendant's evidence of independent design was particularly important. Here the defendant's position that there had been neither conscious nor subconscious copying was strong enough to be accepted.