Abraham Moon & Sons Ltd v Andrew Thornber and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Birss QC |
| Judgment Date | 05 October 2012 |
| Neutral Citation | [2012] EWPCC 37 |
| Docket Number | Case No: CC11P02484 |
| Court | Patents County Court |
| Date | 05 October 2012 |
[2012] EWPCC 37
His Honour Judge Birss QC
Case No: CC11P02484
IN THE PATENTS COUNTY COURT
Rolls Building
7 Rolls Buildings
London EC4A 1NL
Anna Edwards-Stuart (instructed by Lupton Fawcett LLP) for the Claimant
Jonathan DC Turner (instructed by Taylors) for the Defendants
Hearing dates: 9th, 10th July 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an action for copyright infringement. The claimant ("Abraham Moon") is a woollen mill based in Guiseley in Yorkshire. The case relates to a design of woollen plaid fabric for use in upholstery and furnishing. The design is called Skye Sage. The claimant's case is that a woollen upholstery and furnishing fabric called Spring Meadow is an infringing copy of Skye Sage.
The Spring Meadow fabric has been sold to retailers by a firm called "Art of the Loom" based in Clitheroe in Lancashire. The four partners in Art of the Loom are Andrew Thornber, Stephen Thornber, Andrew Slipper and Susan Munns, the first four defendants. Spring Meadow was woven by the fifth defendant, NB Fabrics Ltd, based in Huddersfield in Yorkshire. NB Fabrics is run by Mr Andrew Wellings. Mr Wellings supplies the woven fabric on to one of the companies associated with Mr Brendan Clayton. Those companies are Calder Weaving Co. Ltd and Metropolis Interiors Ltd of Mytholmroyd. Mr Clayton supplies the fabric on to Art of the Loom either directly or via a company associated with Art of the Loom called Woven Art Ltd.
The defendants deny infringement. Their case is that Spring Meadow was designed independently of Skye Sage. If that is right then Spring Meadow cannot be an infringement of any rights in Skye Sage regardless of how similar the two patterns may or may not be. Secondly the defendants contend that even if Spring Meadow is a copy of Skye Sage (which they deny), there can be no infringement of copyright because a careful consideration of the facts and circumstances shows that there is no relevant copyright work in which Abraham Moon can claim a copyright which could be infringed by Spring Meadow. There are other matters in issue but those are the main ones.
At trial Abraham Moon was represented by Ms Anna Edwards-Stuart instructed by Lupton Fawcett LLP and the defendants were represented by Mr Jonathan Turner instructed by Taylors. The trial took two days.
Technical introduction
This case relates to the design of woollen plaid fabrics. This is a specialist area of weaving and merits a short technical introduction. Both sides had permission to call expert evidence from an in-house expert to deal with technical practices and constraints in the British weaving industry. In the event the technical issues were largely agreed.
Plaid fabrics consist of criss-crossed horizontal and vertical bands in multiple colours. Tartans are examples of plaids. Traditional tartan designs use yarns of bold solid colours with the same colours appearing in the warp and the weft. Traditional tartans for use in kilts are made from worsted, a wool processed into long fine fibres. Worsted yarns are unsuitable for upholstery and soft furnishings which require "woollen" yarns.
A piece of woven fabric has a warp (down the length) and a weft (across the width). The use of threads of different colours, or combinations of threads of different colours in the warp and the weft creates the design of the woven fabric. The number of threads in the warp and the weft, the colours and combinations of the colours of those threads can be used to make an almost infinite variety of patterns or designs.
The maximum warp (i.e. width) of a particular piece of fabric is determined by the size of the loom. The fixed width of the warp has an important effect on the design of a patterned fabric because it will dictate the number of repeats of the pattern that can be achieved across the warp. Obviously, large patterns can be repeated fewer times than smaller patterns across a given warp. Similar considerations apply to the weft, except that there is no constraint on the length. A design will typically be repeated down the weft as well as across the warp. In practice, the weft repeat is often the same size as the warp repeat to ensure a balanced design.
Once woven, the fabric is 'finished' i.e. scoured and milled such that the final width (and length) is less than the "off loom" or "greasy" width. This shrinkage needs to be taken into account during the design process.
Woollen plaids (and worsted tartans) are woven on dobby looms in which the warp threads are moved up and down as the shuttle passes backwards and forwards threading the weft over and under the warp threads. In a plain weave, alternate warp threads (or 'ends') are lifted up and down to create a simple "over and under" weave. In more complex designs, groups of threads in the warp are lifted in different combinations to make the gap for the weft threads (or 'picks') to pass through.
Background
The company Abraham Moon was founded in 1837. Its first mill was built in Guiseley the 1860s. Today Abraham Moon is a fully integrated vertical mill. All the dyeing, blending, carding, spinning, warping, weaving and finishing take place on site. As Abraham Moon dyes its own yarns, it is able to produce unique blended yarns which are not otherwise available on the market. Mr John Walsh, a director, gave evidence that these yarns gave Abraham Moon a unique competitive edge although he accepted that the company does also buy in some yarns.
Abraham Moon's fabrics are at the top end of the market. Today it has a customer base including Ralph Lauren, Dolce & Gabbana, Burberry, Lacoste, Daks, and Paul Smith. Mr Walsh said that creativity and innovative fabric design remained at the heart of the survival and success of the Abraham Moon business. Even allowing for the mild hyperbole, I accept Mr Walsh's evidence that design is crucial to the survival of his business.
The Skye Sage fabric was part of a new departure for Abraham Moon. Until 2005 Abraham Moon's focus had been on fabric for apparel but at about that time Abraham Moon started selling furnishing fabrics.
Abraham Moon employs 170 people including six designers who create new collections as well as bespoke ranges. Skye Sage was designed by Martin Aveyard, the design director in October 2004. He has worked for the company since 1975. It was first sold in January 2005 as part of a range of furnishing fabric called the Heritage Collection. The Heritage Collection consists of designs with a Scottish theme called Aberdeen, Balmoral, Highland, Loch, Mac, Skye, St Andrew and Troon. The designs are in various colourways. One of the colourways of the Skye design is called Sage.
In 2010 Abraham Moon discovered that Art of the Loom were selling a furnishing fabric called Spring Meadow. The fabric was available at one of Abraham Moon's best customers, the John Lewis Partnership. Abraham Moon believed that Spring Meadow was a copy of Skye Sage and these proceedings ensued.
The details of how Spring Meadow came to be made and the arrangements between Art of the Loom and others will be considered in detail below. The following outline of how this dispute arose is not contentious.
Art of the Loom stock and distribute natural fibre fabrics. Their January 2011 trade price list has a range of twenty two fabrics, including woollen plaid and herringbone fabrics and cotton, linen and viscose blends. The woollen plaids consist of a range of eight fabrics called Autumn Berry, Autumn Gold, Chestnut Tree, Moorland Heather, Olive Grove, Orchard Fruits, Spring Meadow and Spun Honey. I was provided with an Art of the Loom "cascade" consisting of swatches of these eight woollen fabrics. The eight woollen fabrics are made by Mr Wellings at the fifth defendant company and supplied to Art of the Loom via Mr Clayton.
Mr Nick Murphy is the sales director of a trading division of a furniture company called Tetrad Plc. The trading division is called Contrast Upholstery. In early 2010 Mr Murphy became aware that woven woollen fabric for upholstery was becoming increasingly popular. He knew Abraham Moon and approached its sales director, Mr John Pickles. Exactly what went on at the meeting is in dispute but there is no doubt Mr Murphy thought Abraham Moon's price was too high. Nothing came of the meeting.
Some months later Mr Murphy met Andrew Thornber, the first defendant. A price was agreed and Mr Murphy ordered some fabric. Tetrad/Contrast covered a sofa and chair in fabrics from the eight woollen fabrics in Art of the Loom's range and these trial samples were provided to the John Lewis Partnership. Spring Meadow was not used to cover the furniture but was available as a swatch.
In November 2010 Mr Pickles saw a chair at the John Lewis Partnership covered in a fabric he thought was a copy of one of Abraham Moon's Skye designs. He could not see the colour exactly. In any event it seems most likely that the Art of the Loom fabric used on the chair was actually Autumn Gold.
Mr Pickles telephoned Mr Murphy. There is a dispute about that telephone call. It is common ground that Mr Murphy indicated his source was "Templewood". Templewood is another business associated with the Thornber family and that led to the claimant identifying Art of the Loom as the trade source of the fabric complained of. Mr Pickles also says that Mr Murphy told him that he (Mr Murphy) had arranged for Skye Sage to be copied by Templewood but that...
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