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    Successful logo copyright infringement claim (IPEC)

    The Intellectual Property Enterprise Court has held that an energy drinks company infringed the copyright in a stag logo owned by a bicycle manufacturer, in a judgment that also comments on the effect of omitting a pleading of dishonesty from a claim.

    The defendants submitted that, as the claimant had not alleged fraud or dishonesty nor challenged the authenticity of any document disclosed by the defendants, the court should assume that the defendants honestly believed they had no knowledge of the claimant’s logo; that their own logo was independently created; and that all documents disclosed in support of the claim of independent design were authentic. Clarke J rejected this argument, saying that it amounted to submitting that unless a party pleaded dishonesty in relation to witness evidence, both the party and the court must be taken to accept that the witness had given that evidence honestly. That was incorrect, not only because dishonesty was often suspected where there was insufficient evidence on which to plead it, but also because the court could not properly take a position on the honesty of a witness until that witness had been cross-examined.

    The defendants’ logo had been developed by the second defendant (the director of the first defendant) and the third defendant, a brand consultant. During the course of their research they had looked on the internet at hundreds of existing stag logos for inspiration. The judge held that the strong similarity between the claimant’s logo and the defendants’ logo created a strong prima facie presumption of copying, and that it was more likely than not that the defendants saw the claimant’s logo during the course of their research. The defendants’ evidence lacked credibility, and in the light of this she was satisfied on the balance of probabilities that they had lied about not knowing of the claimant’s logo and that they directly and knowingly copied it in designing their own logo. The minor differences between the two logos were insufficient to negate the existence of the author’s intellectual creation, so it was the whole of the logo that had been copied. Alternatively, the copying was of at least a substantial part. The second and third defendants were jointly liable for the infringement.

    Case: ATB Sales Limited v Rich Energy & Another [2019]

    PLC Practical Law 17.5.19