Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors

A declaration of non-infringement is discretionary and should be granted only where it serves a useful purpose. A declaration is unnecessary where the order, read with the judgment if required, already makes clear which infringement claims have succeeded and which have been dismissed. The court may therefore refuse a proposed declaration where it adds no clarification and would not improve the accuracy or completeness of the order.

This was a form of order hearing following a judgment delivered on 24 February 2021. The underlying trial concerned passing off and alleged infringement of unregistered Community design rights and United Kingdom unregistered design rights in 20 garments.

The court had found infringement in relation to seven selected garments and no infringement in relation to 13. The defendants sought an additional declaration that they had not infringed rights in the 13 garments. The claimants resisted that declaration. The central issue was whether the declaration would serve a useful purpose.

1. Application refused. The requested declaration of non-infringement was a discretionary remedy. The relevant question was whether granting it would serve a useful purpose.
2. The defendants advanced two purposes: without the declaration, the order would give an incomplete picture of what had been decided, and its omission might misleadingly suggest that the issue had not been determined.
3. The court rejected both submissions. The proposed order already provided that, save for the claims concerning garments found to infringe, each claim for infringement of UK unregistered design rights and unregistered Community design rights in the selected garments was dismissed. That wording made clear that all the selected garments had been dealt with.
4. The order also had to be read with the judgment, because the order alone did not explain what the garment references, such as C3, C4 and C7, represented. In those circumstances, the additional declaration would serve no useful purpose and was refused.