Original Beauty Technology & ors v Oh Polly & ors [2021] EWHC 294 (Ch)
This was a dispute between two fashion brands: House of CB and Oh Polly. Both sides sell bodycon and bandage dresses and other garments, styles made famous by celebrities including Kim Kardashian and Jennifer Lopez, either primarily or exclusively online. House of CB claimed that Oh Polly copied 91 of their garment designs, thereby infringing their unregistered design rights under UK and EU law. There was also a claim for passing off: House of CB claimed that Oh Polly had copied their business model, social media, marketing, packaging and presentation (including using the same models and the same locations for photoshoots) such that consumers would be deceived into thinking that Oh Polly was a sister brand of House of CB.
Proceedings were streamlined such that at this trial, the Court was asked to determine the claims for unregistered design right infringement in respect of 20 out of the 91 garments in issue, in addition to the claim for passing off. The trial took place remotely over seven days. Following closing submissions, an in-person physical inspection of the garments was held at Oh Polly’s solicitors’ offices at which the parties’ counsel had the opportunity to point out similarities and differences to the judge.
Mr David Stone (sitting as a Deputy High Court Judge) held that Oh Polly had infringed unregistered design rights in seven out of the 20 garments in issue and that House of CB were entitled to additional damages as a result of the flagrancy of that infringement. The unregistered design right infringement claims in relation to the remaining 13 garments were dismissed. The claim for passing off was also dismissed, the judge having held that although House of CB had proved its case in relation to goodwill in some of the pleaded indicia, they had not established on the evidence that sufficient members of the relevant public had been deceived into thinking that Oh Polly was a sister brand of House of CB.
Anna Edwards-Stuart and David Ivison appeared for House of CB. Chris Aikens appeared as sole counsel for Oh Polly.