Copyright, Designs and Patents Act 1988, section 233

Innocent infringement

Part III Design Right

(1)Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.

Definitions used in section 233 3

design

1 (1) In this Act “design” means features of shape, configuration, pattern or ornament applied to an article by any industrial process, being features which in the finished article appeal to and are judged by the eye, but does not include—

(a)a method or principle of construction, or

(b)features of shape or configuration of an article which—

(i)are dictated solely by the function which the article has to perform, or

(ii)are dependent upon the appearance of another article of which the article is intended by the author of the design to form an integral part.

Defined in Sch.4 para.38 · see it in the full Act

(2) In this Part “design” means the design of ... the shape or configuration (whether internal or external) of the whole or part of an article.

Defined in s.213(2) · see it in the full Act

“design” has the meaning assigned to it by section 1(1) of this Act ;

Defined in Sch.4 para.38 · see it in the full Act
infringing article

(1) In this Part “infringing article”, in relation to a design, shall be construed in accordance with this section.

Defined in s.228(1) · see it in the full Act

(6) The expression “infringing article” does not include a design document, notwithstanding that its making was or would have been an infringement of design right.

Defined in s.228(6) · see it in the full Act
article

“article” means any article of manufacture and includes any part of an article if that part is made and sold separately;

Defined in Sch.4 para.38 · see it in the full Act

Cases considering section 233 7

Kohler Mira Ltd v Bristan Group Ltd

[2014] EWHC 1931 (IPEC) · 13 June 2014Limits

Limits the availability of damages where the defendant proves that it did not know and had no reason to believe that design right subsisted. The defence had been raised too late and, alternatively, was not established on the evidence. (see paras [4]; [9]-[21]; [63])

J Choo (Jersey) Ltd. v Towerstone Ltd. & Ors

[2008] EWHC 346 (Ch) · 16 January 2008Limits

Confirms that domestic design right contains express innocent-infringement rules, but holds that those rules do not apply to registered or unregistered Community design right. (see paras [35]-[37]) Confirms the domestic rule preventing damages against a primary infringer who proves lack of knowledge or reasonable grounds for believing that design right subsisted. The court did not extend that defence to unregistered Community design right. (see paras [35]-[37]) Confirms the domestic limitation of remedies to a reasonable royalty for innocent acquisition by a secondary infringer. The court treated this as a comparison which did not govern unregistered Community design right. (see paras [35]-[37])

Lifestyle Equities CV and another v Ahmed and another

[2024] UKSC 17 · 15 May 2024Limits

The lack-of-knowledge defence applies to damages without prejudice to other remedies, supporting the availability of an account of profits against an innocent primary infringer. (see paras [147]; [156])

What each judgment says about section 233 is in the case-law panel in the full Act.