Shein can take copyright claim against rival Temu to appeal
Fast fashion retailer Shein can take a first of its kind copyright case against rival Temu to the Court of Appeal, a judge has said.
Shein UK claimed that 2,559 photographs of its products taken by employees, as well as by freelancers, agencies or suppliers, were also used on Temu.
The company sent a letter to Temu in June 2023 asking for the photographs to be removed, before bringing a copyright claim to the High Court.
Shein UK argued that Temu presented the images as if they were its own and did not make clear that images were posted by sellers, so it should not avoid responsibility for copyright.
But Justice Bacon said in a judgment last month that Shein UK did not own the copyright of the employee photographs at the time it sent the letter, as the companies were employed by Shein UK's Chinese counterpart, Guangzhou Shein.
The judge ruled that Temu suffered a loss when, after the letter and two court orders, Temu removed "thousands" of product listings from its website.
At a hearing on Monday, Justice Bacon said Shein UK can challenge her decision at the Court of Appeal.
The judge said there were "compelling reasons" for the Court of Appeal to consider the challenge as it was the first UK case to consider how rules regarding copyright and intermediary platforms apply to online marketplaces.
Shein UK argued the judge had not properly considered whether Temu was liable for the communication of photographs on its site to the public.
Michael Bloch, KC, representing Shein UK, said that unlike videos posted by users on YouTube, which are clearly not owned by the site, Temu "made no mention of sellers and gave the impression that the products on sale were being supplied by Temu".
Charlotte May KC, representing Whaleco UK, which runs Temu, said Shein UK's points could have been raised at the original trial and the judge had not erred in law.
Justice Bacon said: "I consider Bloch's argument just about meets the threshold for real prospect of success for the purposes of permission to appeal.
"Given this is the first UK case to consider the application of a hosting defence to an online marketplace it seems to me a compelling reason for the Court of Appeal to consider this matter."
She also ordered that Shein UK post a message on their supplier portal informing customers about the court's original judgment which should be pinned to the top of the page or reposted every week for six months.
By Jack Hudson, Press Association Law Reporter
source: PA
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