Bodo Sperlein Ltd v Sabichi Ltd snd Sabichi Homewares Ltd [2015] EWHC 1242 (IPEC) is a decision of Judge Richard Hacon in the Intellectual Property Enterprise Court for England and Wales last week.

In an action for copyright infringement in respect of Bodo Sperlein's design for a highly popular Red Berry range of tableware, Judge Hacon held that the design had indeed been infringed by Sabichi's importation and sale of tableware with a design ('Red Blossom') that substantially copied the protected design (the plaintiff's design is shown on the right, the infringing design on the left). Since there had been copying, Sabichi could not escape from having to pay damages on the basis that their infringement was "entirely innocent". Nor was there any reason why Bodo Sperlein should be denied the discretionary award of an account of profits.

The allegedly infringing products had been created in China and were then imported and sold in the UK. Sabichi said its tableware had been independently designed by an employee, though the employee admitted attending the design show at which Red Berry had been launched and regularly reading the style magazine in which it had featured, but denied having seen or been influenced by Red Berry.

On the issue of infringing Judge Hacon ruled that, in the absence of direct evidence of copying, the first step when assessing an allegation of copyright infringement was to consider whether the plaintiff has established a prima facie inference of copying by reason of similarities between the copyright work and the defendant's work; the stronger the prima facie case of copying, the more compelling the defendant's evidence of independent design had to be to rebut that inference. Even if copying was established, the plaintiff had still to show that his design was copied in substantial part -- though this was the almost inevitable conclusion once copying was established.

The similarities between Red Berry and Red Blossom were very striking and it was almost inconceivable that Red Blossom design should employ exactly the same shade of red as that of Red Berry unless the latter was copied or if there existed a very convincing explanation for the coincidence -- which there wasn't.

Although Sabichi's designer had no recollection of being influenced by Red Berry, it was possible that she had forgotten such influence or successfully put it out of her mind. It was likely that Red Berry had played a part in the creation of Red Blossom. The designs appearing on Sabichi's tableware were therefore indirect and substantial copies of the plaintiff's copyright work.

The judge awarded an account of profits totalling £31,703.01, plus interest.