Cargo trousers are a staple of trades people, and back on the radar for fashion girlies in 2023, but is there any room left in those pockets for an "original" design?

Not in the case of KF Global Brands Ltd v Lead Wear Ltd & Ors [2023] EWHC 1303 (IPEC).

However, there are a few lessons to be learned from this case for designers seeking to protect and enforce their designs.

A portion of the judgement discusses what the design being relied on in the case actually was. Confusion seemed to arise due to a lack of evidence in the form of design drawings or the like from the relevant time. The judgement found that the relevant design was actually different to the one contended by the Claimant! Such issues may be avoided by keeping organised chornoligal records of design drawings, including interations as the design changes during development. Or, preferably, by registering the design rather than relying on unregistered design right.

Another notable point of law on which the Claimant fell in this case is that, where there is only a minor difference between the relevant design and an existing design, then design right cannot subsist in the design as a whole, rather only in that changed part of the design. The minor difference in this case (relative to an Aldi trouser no less!) was the change from a pen loop to a pen pocket. So, it was concluded that there was no design right in the trouser due to lack of originality, and the Claimant had not made any case with regard to the design right in the pen pocket. Again, a more favourable or at least clearer outcome may have been achieved if the case related to a registered design where design freedom and such like would be taken into consideration.

And a final learning point for saving face - if you are making a product that is similar to another company's product, do not refer to your product (even internally) by the name of that other company!

26. I reject the Claimant's case that the BKS-001 design document accurately depicts the design of the Claimant's trousers as at April 2015. I find that the only material difference between the Aldi design and the BKS-001 design ... was the change from pen loops to a pen pocket. Otherwise the BKS-001 design as at April 2015 was a copy of the Aldi design.
27. Furthermore this difference is so minor that it does not create a new design right in the BKS-001 design as a whole, and the Claimant only relies on that design as a whole. The Claimant did not rely on any design right in the pen pocket itself. ... It follows that the BKS-001 design as at April 2015, ie the only design relied upon, is not original, and the claim must fail.

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