Nouveau Fabrics Ltd. v Voyage Decoration Ltd. & Anor

Copyright infringement in a design may be inferred from the overall similarity of works, assessed in context. A court should not dissect an original work, or the alleged similarities, into isolated commonplace elements where the combination may be original or sufficiently similar to imply copying. Access to the copyright work may shift the evidential burden to the alleged copier. The statutory requirement that a defendant knows or has reason to believe that an article is an infringing copy requires more than reasonable suspicion. The defendant must evaluate the available facts, allow reasonable time for that evaluation, and make sensible inquiries where appropriate.

Nouveau claimed copyright in drawings and fabric designs for its Pineapple furnishing fabric. Voyage was alleged to have imported and sold, and Dunelm to have possessed and sold, Luxor fabric made in Italy. The claims ultimately proceeded principally on secondary infringement under the Copyright, Designs and Patents Act 1988. The issues were whether Luxor copied the whole or a substantial part of the Pineapple works, and when each defendant knew or had reason to believe that Luxor was an infringing copy.

1. Copyright and originality. The claimant’s drawings were original artistic works. The court rejected an analysis which dissected the design into underlying concepts and unoriginal constituent elements. Applying Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, each drawing was to be considered as a whole. A work may be original because of its author’s own conception and execution, even though it contains elements visible in other works.

2. Copying. The proper starting point was comparison of the designs. The question was whether the similarities were sufficiently close, numerous or extensive to be more likely to result from copying than coincidence, and whether the alleged copier had access to the original. The Pineapple fabric was sufficiently publicly available to support an inference of access. The overall similarities between the motifs justified an inference of copying, despite differences in execution, proportions and detail.

3. The court rejected further dissection of the similarities. Similarities may be disregarded where they are commonplace or merely express general ideas, but the court must still assess the particular arrangement and appearance of the elements. An overall impression of copying may arise from a combination of elements which, viewed separately, are unoriginal. The defendants’ evidence of independent inspiration was inconsistent and incomplete and did not rebut the inference. This approach was consistent with the reasoning in Designers Guild v Russell Williams Textiles Ltd [2001] FSR 113.

4. Substantial part. The copied motif incorporated a substantial part of the independent skill and labour contributed by the original author. The requirement was therefore satisfied, applying the test stated by Lord Scott in Designers Guild v Russell Williams Textiles Ltd [2001] FSR 113.

5. Reason to believe. Under sections 22 and 23 of the Copyright, Designs and Patents Act 1988, reason to believe required more than reason to suspect. The defendant had to evaluate all known facts, could not simply ignore the claimant’s allegations, and in an appropriate case had to make reasonable inquiries. A reasonable period for evaluation was allowed.

6. Voyage acquired reason to believe that Luxor was an infringing copy by 8 February 2002, when the Italian explanation remained incomplete and raised further questions. Dunelm had likewise acquired reason to believe by that date. A defendant which merely receives an infringement claim and performs no sensible inquiry may, depending on the circumstances, acquire reason to believe. Both defendants were therefore liable for infringement or threatened infringement. Damages were left for a separate inquiry, with injunctive and other relief to be addressed after further argument.