Battle of the bikinis - Unregistered rights in action

Agent Provocateur, the British lingerie brand, is suing Made in Chelsea’s Kimberley Garner for allegedly copying one of its bikini designs.

The Mazzy bikini in which rights are claimed features cut outs both below the top and the above the bottoms of the bikini.  

The Monaco bikini produced by Ms Garner’s brand, features a similar, if not identical, design.  
 
However, while Agent Provocateur’s design has fluorescent orange and pink inserts, Ms Garner’s does not and Ms Garner’s design has a gold pendant hanging from the centre of the top.

Will any of this make a difference? It depends on the rights claimed by Agent Provocateur but most likely not.
 
If Agent Provocateur claims in the shape of the product then it does not need to place reliance on the coloured aspects.  It demonstrates that the ability to make a more generalised claim is the strength of unregistered design right claims when compared to a registered right, although this can impact on the validity of the rights claimed.  Equally, it again shows that while copying must be established, simply making a limited number of changes will not defeat an action if the essence of the design remains.  The urban myth of making 3 or 5 or 7 changes to avoid infringement is………………….an urban myth.

Also, this latest spat shows that brands should not throw in the towel if they see a design they consider is very similar to their’s but they have not registered it.  Unregistered rights are of more limited duration and you must prove copying, but they will still be available to you.  

Finally, whilst this is another example of a celebrity hitting the intellectual property headlines, on this time the brand is claiming against the celebrity in contrast to Rihanna pursuing the retail brand.  Brands and design ranges produced by celebrities often face questions about how much design input that celebrity has and Ms Garner will have to demonstrate independent design if she wishes to refute copying.