Ashley Wilde Group Ltd v BCPL Ltd

Copyright infringement involving indirect copying requires a sequential analysis. The court must first identify what was copied and decide whether the similarities are sufficiently close, numerous or extensive to support an inference of copying. Differences may rebut that inference. Only if copying is established should the court assess whether the part taken contains elements expressing the author’s intellectual creation and is therefore substantial. Commonplace features, general ideas and unoriginal elements must be disregarded when identifying what has been taken. Expert evidence must be independent, objective and impartial, and an expert who has moved from a partisan advisory role must reconsider the evidence fairly, including material differences.

Ashley Wilde manufactured bedlinen incorporating the Evangeline Design, an original artistic work created by its employee. BCPL manufactured and sold Amore duvet covers and bed runners for a competing celebrity bedding range. Ashley Wilde alleged that the Amore Products indirectly copied the Evangeline Design through the Evangeline Duvet Cover.

The issues included copying, substantial reproduction, authorisation and infringement. The central questions were whether the similarities supported an inference of copying and, if so, whether the copied features constituted the whole or a substantial part of the copyright work.

1. The claim was dismissed. The court found that the Amore Products were not infringing copies.
2. Under Designers Guild v Russell Williams Textiles [2000] UKHL 58, the court first undertook a visual comparison, identifying the similarities alleged to have been copied and considering whether they were sufficiently close, numerous or extensive to be more likely the result of copying than coincidence. Access to the copyright work or intermediate work could shift the burden to the defendant.
3. The court rejected the alleged similarities as insufficient. Scallops, pleats, scalloped pleats, adjacent motifs and offset rows were commonplace or general features. The remaining similarities—crescent shape, broadly similar size and broadly similar row spacing—were insufficiently close, numerous or extensive. The substantial differences in pleating method, number, size, shape and arrangement supported independent design and rebutted any inference of copying.
4. The court confirmed that what matters is what was taken, not what was added. The comparison for substantiality remained between the copied features and the copyright work, not merely between the two commercial products. Substantiality is qualitative: a part is substantial if it contains elements expressing the author’s intellectual creation, applying Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 and Infopaq Internas A/S v Danske Dagblades Forening [2009] ECR-I 6569.
5. The judge stated that, even if copying had been inferred, the evidence would have established independent design on the balance of probabilities. The contemporaneous documents contained no indication of copying, and the differences were inconsistent with the alleged mechanical copying process.
6. The claimant’s expert evidence was given no weight as opinion evidence. The expert had initially been instructed to identify material supporting the claimant’s case and had not objectively reconsidered the evidence when later instructed as an expert witness. This failed to satisfy the independence, objectivity and impartiality required by CPR Part 35 and the Practice Direction. The defendant’s expert evidence was preferred.

The claim was dismissed.