For a design to qualify for protection as intellectual property, it must both be novel and have individual character. In a guideline case, the High Court found that the design of Union Jack-emblazoned hoodies and T-shirts, targeted at the London tourist market, enjoyed neither of those attributes.
A businessman alleged that a clothing company had infringed his registered design rights in a red hoodie and a grey T-shirt. Both bore a legend consisting of the words 'LONDON' and 'ENGLAND' with a Union Jack appearing between them. The company asserted that the registration of both designs in May 2011 was invalid in that hoodies and T-shirts bearing a similar or identical legend had been available on the market for a number of years prior to that date.
Ruling on the dispute, the Court noted that the design of the garments was unexceptional. Their colours were common, standard and frequently used. The legend they bore was the sole element of their design that was capable of passing the novelty and individual character tests.
The decisive evidence came in the form of a brochure, dated 1999, that advertised T-shirts and hooded tops bearing a materially identical legend. The businessman genuinely believed that the brochure was a forgery, but the Court found no reason to suppose that it was anything other than authentic.
The tops itemised in the brochure represented prior art that undermined the garments' claims to novelty. Since the overall impression given by the garments and their counterparts in the brochure was the same, the garments also lacked individual character. The relevant design registrations were declared invalid and the businessman's infringement claim was dismissed.