When does product imitation cease to be commercially advantageous and become an infringement of intellectual property rights?

The Primark-Superdry battle earlier this month illustrated what happens when retailers are accused of copying design. Superdry owner Laundry Athletic alleged that Primark had copied elements of its leather jacket. After a lengthy dispute the value retailer paid out an undisclosed sum out of court, and agreed never to produce the jacket again.

The infringement issue tends to arise more frequently in tough market conditions, as retailers seek to remain competitive.

Emma Nutbeen, Halliwells lawyer and former head of legal for Matalan, says: “Designers and buyers often take inspiration from competitors’ best-sellers, but where they sail too close to the wind it may result in costly court proceedings, payment of damages or an account of profits to the intellectual property rights [IPR] owner and the removal of the product.”

She adds that, as a general rule, “a product, packaging, or branding that creates a different overall impression and does not contain any identical key features will be one that flatters, rather than infringes IPR”.

In many cases, information is placed on products to indicate that IPRs subsist - copyright marks, registered and unregistered trademarks and so on. Where such details are not evident and the end product, packaging or branding is very similar to the inspiration, Nutbeen advises retailers to take specialist legal advice before manufacturing, sourcing or marketing costs are incurred.