Artist wins but doesn’t Win(E) Big In Copyright And Passing Off Claim...

This article will look at the copyright and passing off claim against a wine brand which acts as a warning on how to/ not to litigate an IP case. In the case Martin & Ors v Bodegas San Huberto SA & Ors [2025] EWHC 1827 (IPEC), judgment handed down on 24 July 2025 .

The First Claimant, Shantell Martin MBE is a visual artist, known for her distinctive style of black & white, marker pen style line drawing, which has been used in collaborations with brands such as Puma and The North Face, as well as in large scale drawings like Dance Everyday and The Path: Times Square.

Copyright in the Work was assigned to the Second Claimant, Found the Found LLC, a New York based company, owned by Shantell Martin.

The Defendants were Bodegas San Huberto (BSH), an Argentinian large-scale winery, GM Drinks Limited, a UK wine importer. As well as Mr Patch, a director of GM Drinks.

Mr Patch was responsible for ordering the Products from BSH and he carried out no IP clearance searches, assuming this was the responsibility of the supplier.

What was the Claim?

In 2018 BSH had a designer create labels for their wine, which was later exported into the UK. This bore more than a little resemblance to Shantell Martin’s work. It had the same black and white lines, curves, and ‘humanoid faces’.

GM Drinks, run by Marc Patch, imported and sold the wine in the UK with this label.

Shantell Martin complained about the label design and it was redesigned; a second label was created and bottles were imported into the UK and sold by GM Drinks. Shantell Martin again complained about the second label and a third label was designed and again imported by GM Drinks into the UK. Ms Martin further complained about this design.

Found the Found LLC alleged copyright infringement under sections 18, 22 and 23 of the Copyright, Designs and Patents Act 1988. Ms Martin separately advanced claims based on her moral right to be identified as author and in passing off, alleging that the wine was falsely presented as being endorsed by or connected with her.

Sounds Pretty Straightforward, Doesn’t It?

Despite strong rights, a series of procedural and strategic blunders led to limited success and some big, non-wine-induced headaches. Usual emphasis on getting relied upon procedure, and evidence, right.

Key points which didn’t help the claimant:

Procedural: The claimants didn’t include important claims, including moral rights and flagrancy, in the agreed List of Issues at the CMC. The court refused to hear them later, finding it would be unfair to the defendants. It’s a reminder that procedural housekeeping isn’t just admin, it can determine what arguments you’re even allowed to make.

Evidence Deficiencies: The claimants relied on flat images instead of physical bottles, leaving the court unable to assess how the labels would actually appear on a curved surface. There were also no “trap purchases” and no evidence of consumer confusion for the later labels. When your case depends on how something looks in the real world, you need to show the real world.

Strategy: The claimants advanced a hyper-technical eight-point feature analysis, which the court described, politely, as “not helpful” and rejected. The argument appeared to focus on individual elements rather than whether a substantial part of the artistic work had been reproduced. Sometimes the more complex you make an argument, the less persuasive it becomes.

Disproportionate Overreach: Pursuing three defendants and three different labels may have diluted what looked like the strongest part of the claim. In hindsight, a narrower, more focused case might have been more compelling and considerably less expensive.

Reading the judgment, it feels like a case that became increasingly over-lawyered. A straightforward dispute was turned into a highly technical exercise, and the claimant seemed to lose sight of the simple question the court actually had to answer.

The Knowledge and “Innocent Infringement” Issues

The defendants’ knowledge was important, but in different ways for the different forms of liability.

GM Drinks was liable for primary copyright infringement under section 18 of the Copyright, Designs and Patents Act 1988 in relation to the first-label products. Primary infringement does not generally depend on the defendant knowing that it is infringing.

However, the court found that GM Drinks might be protected from an award of damages for acts committed before shortly after 13 April 2020 if it could establish the statutory innocent-infringement provision. That provision can restrict damages where an infringer did not know, and had no reason to believe, that copyright subsisted in the relevant work. It does not erase the underlying finding of infringement.

Knowledge was also relevant to the allegations of secondary infringement and joint tortfeasorship. BSH and Mr Patch did not know of Ms Martin or her work before the complaint was received. The court therefore found them jointly liable only for certain dealings in first-label products after they had been notified of the alleged infringement.

The decision is an important reminder that an importer cannot necessarily avoid primary liability merely by assuming that its overseas supplier has carried out appropriate IP clearance.

This all serves as a bit of a warning to always obtain evidence, follow procedure, and ultimately, approach matters proportionately. Of course, hindsight is always 20/20.

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