Leslie Chong is a JD candidate at Osgoode Hall Law School.
Following a judgment from the England and Wales Patent County Court, fashion designer Dame Vivienne Westwood successfully sued internet clothing provider Anthony Edward Knight for trademark and copyright infringement. The decision carefully detailed each of Westwood’s claims against Mr. Knight, which effectively shows how the defendant had made a career riding off the coat tails of the plaintiff’s success.
While this was not a case of direct infringement (i.e., counterfeits), the court held that the defendant’s use was ‘unacceptably close’ (see here for examples). In the first case to be decided under a newly accelerated and simplified court process, the plaintiff had successfully protected her intellectual property rights, from the use of her name, to other famously-Westwoodian logos and artwork featured on her clothing.
The crux of the infringements involved the unlawful use of the plaintiff’s registered trademark in her name “VIVIENNE WESTWOOD” in association with goods including clothing, footwear, headgear and jewelry. The defendant had use of the words ‘vivienne’ and ‘westwood’ frequently in the promotion of his goods, and had even used the two words in close proximity to each other (e.g., “Red Planet Westwood Co. Shirt by Designer Vivienne May”) for describing products that often bore copies of the plaintiff’s artwork. Furthermore, the court also found that the defendant had violated the plaintiff’s copyright in a piece of original artwork used in association with her brand (e.g., the use of the plaintiff’s orb).
While this case is largely a success for the designer, the court was clear in drawing a line between protectable and non-protectable ‘artistic works’ in copyright. In denying, for example, the plaintiff’s claim that the defendant’s use of the word ‘Westwood’ written in cursive (or even the use of that cursive font) ought to amount to copyright infringement, the court was sure to not convey to the plaintiff more rights than the law could afford. Nonetheless, this precedent was a clear victory for successful fashion houses that are often victims of imitation and counterfeit products.
