Christmas jumper wars - design infringement claim ends up in court

As if Christmas jumpers were not silly enough, this week sees the Irish High Court faced with the tough decision as to whether one silly jumper infringes another.

As reported in the 'Crime and Law' section (no less) of the Irish Times, an Irish e-retail company, Zatori Results has brought an action claiming that Littlewoods has infringed the design for one of its jumpers that features a snowman, some trees, a few stars and a sleigh (original concept for Christmas there then!).

If one puts aside the preconception that any form of Christmas jumper is naff, unlikely to be unique and as such not worthy of protection, let's compare these wonderful creations (apologies to either Zatori or Littlewoods if I have browsed the wrong ones but my point will remain the same):

Exhibit A: a Zatori jumper              

Exhibit B: the closest I could find online for the a Littlewoods jumper

So we can see that the first has some snow going on with a few stars, random reindeer, a jolly snowman and a couple of trees. The second does have the snow, some stars (albeit different) and some reindeer (though travelling the other direction). 

The claim states that the jumper complained of is 'almost identical' (which would have to be the case for design infringement to be made out).

In relation to the Zatori design (as the Irish Times reports) it "included a snowman in the middle of the front of a jumper with stars surrounding it and two Christmas trees on either side, set against a navy blue background." (So I think Exhibit A above is the correct one). In relation to the Littlewoods creation this was described as being made of an inferior material and did not include the moon and sleigh. The only example I found online was as above with a sleigh.

In relation to the claim, the materiality of the quality of the material is secondary to the design on the jumper itself but one would have thought that the absence of the moon and the sleigh, not to mention the trees do somewhat distinguish the two jumpers. 

As with any IP related claim, the law will protect the actual creation/expression of the idea rather than the idea of the Christmas jumper itself. So, deciding to pack a jumper with Christmas themed cliches will not satisfy the test of originality or necessarily distinguish one delightful Christmas jumper creation from another.

In allowing the claim to be admitted (to be heard next week), the judge, Mr Justice Ryan, commented that the disputed jumper was not like the one he had bought.

In addition to proving that the particular design has been substantially copied and infringed, Zatori will also need to quantify the loss it claims as a result of such infringement. The company claims that sales of its jumpers are down 75% on last year but it would need to show that the dramatic dip in sales was due to the infringing jumper itself and not wider market forces and competition in the Christmas jumper market.

So will a jumper that does not include a moon and sleigh be deemed to be substantially similar to one that does will be one of the challenging issues for the Irish High Court to decide next week. 

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