Not such a friendly decision for Hugz: A new development in passing off that could help combat fashion copy-cats
On 19 November 2020, the Intellectual Property Enterprise Court (IPEC) in the UK handed down its judgment in the case of Freddy SPA v Hugz Clothing Ltd & Ors [2020] EWHC 3032, which ran for an unusually long time for the IPEC (three days).
The decision was a rare occurrence of a passing off claim, together with other IP causes of action, succeeding in the get-up of a functional item, being “bum enhancing jeans”. Ordinarily, such cases, particularly with respect to fashion items, fail as the get-up is seen as merely design elements or ornamental, or the circumstances of the use lead to a conclusion that other trade marks (e.g. brand names and logos) dominate consumer perception.
This case could embolden brand owners in relation to enforcement of the look and feel of their clothing as it creates the possibility of confusion ‘post-sale’ in addition to the point of sale.
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