• Rosie Burbidge

What are the consequences of falsifying evidence?

Updated: Apr 28

An recent case concerning the infringement of registered designs for furniture was notable for a finding of dishonesty on the part of the director of the first defendant company (ASR Interiors Ltd v AWS Trading Ltd & Anor).

The case concerned three designs for a sideboard, a wing and a chair. The defendant, which was accused of infringing each design, argued that it had previously sold products that invalidated the design rights. (Pictured: the sideboard design, left, and the infringing product, right.)

But the judge, Recorder Douglas Campbell QC, found that the sales orders referred to in the statement of truth by Nigel Yates, director of the defendant, must have been fabricated.

No electronic record of the relevant sales order from 2019 survived, and the associated product was not included in the defendant’s 2019 price list. A second sales order must also have been falsified, as it was not otherwise explained.

The consequences of this finding for the defendant’s case were severe, as the judge pointed out:

Falsification is a serious allegation and needs to be proved by cogent evidence. The evidence before me is sufficiently cogent for me to conclude that sales order 3959 to Leen has been fabricated, and I so find. So for that matter was sales order 7825. Neither party suggested that anyone other than Mr Yates himself could have performed such a fabrication, and I find that he did … This does not mean that I automatically disbelieve all of Mr Yates’s evidence on other issues, but in my view it is unsafe to rely on anything Mr Yates said which is unsupported by other material.

Finding undermines case

The validity of all three designs was therefore upheld.

The judge also found that the overall impression produced on the informed user by the designs and the alleged infringing products was the same, despite some differences. The evidence on when the alleged infringing products were made available to the public was in general “confused and unsupported by any first hand evidence apart from that of Mr Yates”. The designs were therefore infringed.

The case is a cautionary tale for parties in litigation, and their representatives, that the courts take a dim view of statements and evidence that are not consistent, are unclear or appear to be dishonest.

Judges in the IPEC, where this case was heard, are used to dealing with witnesses who are unfamiliar with the law, have strong feelings about the dispute or cannot remember details, and will make allowances. But clear evidence of fabrication will almost certainly damage your entire case.

To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com