From wall to wine: Pouring style on the bottle
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Söğüt Atilla
Sep 28, 2025, 6:43:13 AM (7 days ago) Sep 28
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Home / [2025] EWHC 1827 (IPEC) / artistic style / artistic works / copyright / Copyright infringement / misrepresentation / Passing off / Shantell Martin v BSH / Söğüt Atilla / From wall to wine: Pouring style on the bottle
From wall to wine: Pouring style on the bottle
This Kat has woken up from her summer sleep and is excited to return to hunting down the newest IP cases! Having said, the decision of the Intellectual Property Enterprise Court (IPEC) in Shantell Martin & Anor v Bodegas San Huberto SA & Ors, dated 24 July 2025, is worth analysing as it deals with copyright infringement and passing off claims.
The dispute arose after GM Drinks Ltd and one of its directors, Mr Marc Patch, imported to and distributed in the UK bottles of wine produced by Bodegas San Huberto (BSH). BSH had several labels allegedly similar to a wall drawing created by a visual artist Ms Shantell Martin. The court found that only one of the labels infringed the copyright in Ms Martin’s work and accepted her passing off claim in relation to only that label, while considering other labels as featuring some innocent similarities with her work.
In early 2020, GM Drinks began importing BSH’s wine into the UK, bearing the label shown below.
After being alerted by some fans to the use of her drawing on the wine bottles, Ms Martin sent a cease and desist to Mr Patch on 13 April 2020. In response, a revised label was created and used.
Ms Martin, dissatisfied with the second label, issued a further request as she considered a high degree of similarity to persist. This prompted the adoption of a third version:
Finding even this iteration unacceptably close to her work, Ms Martin objected once again by issuing yet another cease and desist request to Mr Patch.
Despite altering the labels in an attempt to move further away from Ms Martin’s work, their use did not cease immediately. This led Ms Martin to take the matter to court, claiming copyright infringement under sections 18, 22, 23(a) and (b) of the Copyright, Designs and Patents Act 1988 (CDPA), and damages for passing off the wines as if she endorsed or authorised them.
Regarding the first label, the court readily accepted that it “clearly” copied a substantial part of Ms Martin’s work as it reproduced parts of Ms Martin’s work which were expressions of her intellectual creation, reflecting her individuality. Ms Martin accused the defendants of issuing to the public, importing into the UK, possessing, and dealing with this infringing copy. And as the defendants did not contest undertaking these acts, copyright infringement under sections 18, 22, 23(a) and (b) of the CDPA was established. However, the court emphasised that the defendants could merely be held liable for the damages Ms Martin suffered shortly after the company was made aware of the potentially infringing nature of the label, that is on 13 April 2020 (see paras 112 and 155).
This was a relatively straightforward conclusion as, despite the presence of some cacti, barrels, and llamas in the label, it includes “humanoid faces [mixed] with geographic elements, devoid of perspective”, which constitute substantial parts of Ms Martin’s work. By focusing on the elements copied, instead of the ones added, the court appeared to reiterate the correct way of comparing a copyright work with an allegedly infringing copy, as it did not and should not matter whether the latter features elements that do not exist in the former.
When the court moved to the second label, it tried to decide whether the resemblance to Ms Martin’s work would be “too general to count” or “too close to be allowed” (citing Laddie, Prescott & Vitoria: The Modern Law of Copyright, 5th edn). Although it was apparent for the court that the second label is an “endeavour to avoid infringement” and, thus, a studied copy of the first label, as well as Ms Martin’s work, it was not a substantial copy of it. It was not denied that the second label features black and white line drawings of some objects, loops, dotted lines, suns, and birds similar to Ms Martin’s work. However, they were found to be “common elements in the language of drawing”, rather than being Ms Martin’s dotted lines, suns, or birds (para 91).
Moreover, the court made a noteworthy point here. One of the claimant’s arguments was that the second label imitates her style, which makes her works “instantly easily recognisable” (para 76). The court, however, skilfully avoided delving into the debate whether style can be protected by copyright law. It noted that style can be discerned by examining one’s works generally, and held that whether substantial copying occurred in this case could only be determined by comparing the said label with the particular work at hand. Not leaving the issue unattended though, the court further stated that style may be an indicator of goodwill, and that its unauthorised imitation can be relevant in assessing the tort of passing off. This seems to be a particularly significant point given artists’ growing insistence on receiving copyright protection for their styles. If followed, this approach may help put an end to debates over the copyrightability of artistic styles, and redirect artists, who seek to derive benefits from their styles, towards the law of torts.
The third and final label was found to be even further away from the work at hand than the second one, and accordingly, not considered infringing. Interestingly, the claimant attempted to point out the similarities between the third label and the second label, rather than her work. Although one reason for this mistaken approach might be the absence of any substantial similarity between the work and the said label, the court rightfully picked up on this erroneous approach and rejected comparing the two labels.
The court assessed three factors to see whether the defendants committed the tort of passing off: whether Ms Martin owned goodwill in her work, whether the defendants created a misrepresentation that Ms Martin endorsed their goods, and whether, as a result, Ms Martin suffered any damages. It was decided that Ms Martin has established considerable reputation which “exist[s] in [her] entire artistic output”, in her style. And her style, the source of her goodwill, is also reflected by the work at hand, given the presence of “black line drawings on a white background; two-dimensional imagery, with an absence of perspective; and … a map-like look, or patchwork with an unusual mix of humanoid faces with geographical features such as mountains” (paras 123 and 127).
After establishing the first factor, the court assessed whether consumers might be misled by any of the labels attached to the wine bottles. Although there was convincing evidence submitted by the claimant that at least two of her fans thought the wines bearing the first label was “fairly” hers (para 130), the existence of such confusion was not persuasively demonstrated in relation to the wines carrying the second or third labels. Thus, the court could not rule in favour of Ms Martin regarding the second and third labels.
Having found the existence of Ms Martin’s goodwill and a misrepresentation in relation to the first label, the court accepted that she necessarily suffered damages and allowed her passing off claim in relation to the said label alone.
Some degree of imitation – for purposes of learning from, praising, criticising, or drawing inspiration from others – seems to be a prevalent practice in the artistic community. And this Kat is in favour of allowing a broader room for such unauthorised imitations through the expedient operation of exceptions and limitations. However, where the intentions of imitators are clearly parasitic, with no genuine artistic purpose in mind, copyright should weigh in favour of artists, not imitators. The first label appears to be an example of this latter instance.
Protection of artistic style, on the other hand, should not be over-emphasised or turned into a catch-it-all phenomenon that artists may invoke whenever they encounter imitation. Although it might have been possible to decide that the second label imitated Ms Martin’s style, leaving the assessment of the impacts of such imitation to the tort of passing off was the better and more reasonable approach to adopt. Discussing whether one’s style has provided them with reputation that justifies legal protection and whether presenting to the public an artistic work (or, as in this case, goods accompanied by an artistic work) in that style without consent amounts to misrepresentation, seems likely to be more fruitful than debating the copyrightability of style itself – an inherently abstract concept that does not fit neatly within the sphere of copyright law.
The dispute arose after GM Drinks Ltd and one of its directors, Mr Marc Patch, imported to and distributed in the UK bottles of wine produced by Bodegas San Huberto (BSH). BSH had several labels allegedly similar to a wall drawing created by a visual artist Ms Shantell Martin. The court found that only one of the labels infringed the copyright in Ms Martin’s work and accepted her passing off claim in relation to only that label, while considering other labels as featuring some innocent similarities with her work.
Background
In 2017, Ms Martin created the drawing below for a solo exhibition entitled “Someday We Can”. |
| Ms Martin’s wall drawing (with dimensions approximately 4 m x 12 m), created to be exhibited at the SKG Museum in Buffalo, New York. |
In early 2020, GM Drinks began importing BSH’s wine into the UK, bearing the label shown below.
 |
| Defendants' first label. |
After being alerted by some fans to the use of her drawing on the wine bottles, Ms Martin sent a cease and desist to Mr Patch on 13 April 2020. In response, a revised label was created and used.
 |
| Defendants' second label. |
Ms Martin, dissatisfied with the second label, issued a further request as she considered a high degree of similarity to persist. This prompted the adoption of a third version:
 |
| Defendants' third label. |
Finding even this iteration unacceptably close to her work, Ms Martin objected once again by issuing yet another cease and desist request to Mr Patch.
Despite altering the labels in an attempt to move further away from Ms Martin’s work, their use did not cease immediately. This led Ms Martin to take the matter to court, claiming copyright infringement under sections 18, 22, 23(a) and (b) of the Copyright, Designs and Patents Act 1988 (CDPA), and damages for passing off the wines as if she endorsed or authorised them.
IPEC’s decision
On copyright infringement
The court compared each label to Ms Martin’s work, with the help of Ms Martin’s colour-coded submission demonstrating the similarities between her work and the first label. |
| The colour-coded comparison provided by Ms Martin. |
Regarding the first label, the court readily accepted that it “clearly” copied a substantial part of Ms Martin’s work as it reproduced parts of Ms Martin’s work which were expressions of her intellectual creation, reflecting her individuality. Ms Martin accused the defendants of issuing to the public, importing into the UK, possessing, and dealing with this infringing copy. And as the defendants did not contest undertaking these acts, copyright infringement under sections 18, 22, 23(a) and (b) of the CDPA was established. However, the court emphasised that the defendants could merely be held liable for the damages Ms Martin suffered shortly after the company was made aware of the potentially infringing nature of the label, that is on 13 April 2020 (see paras 112 and 155).
This was a relatively straightforward conclusion as, despite the presence of some cacti, barrels, and llamas in the label, it includes “humanoid faces [mixed] with geographic elements, devoid of perspective”, which constitute substantial parts of Ms Martin’s work. By focusing on the elements copied, instead of the ones added, the court appeared to reiterate the correct way of comparing a copyright work with an allegedly infringing copy, as it did not and should not matter whether the latter features elements that do not exist in the former.
When the court moved to the second label, it tried to decide whether the resemblance to Ms Martin’s work would be “too general to count” or “too close to be allowed” (citing Laddie, Prescott & Vitoria: The Modern Law of Copyright, 5th edn). Although it was apparent for the court that the second label is an “endeavour to avoid infringement” and, thus, a studied copy of the first label, as well as Ms Martin’s work, it was not a substantial copy of it. It was not denied that the second label features black and white line drawings of some objects, loops, dotted lines, suns, and birds similar to Ms Martin’s work. However, they were found to be “common elements in the language of drawing”, rather than being Ms Martin’s dotted lines, suns, or birds (para 91).
Moreover, the court made a noteworthy point here. One of the claimant’s arguments was that the second label imitates her style, which makes her works “instantly easily recognisable” (para 76). The court, however, skilfully avoided delving into the debate whether style can be protected by copyright law. It noted that style can be discerned by examining one’s works generally, and held that whether substantial copying occurred in this case could only be determined by comparing the said label with the particular work at hand. Not leaving the issue unattended though, the court further stated that style may be an indicator of goodwill, and that its unauthorised imitation can be relevant in assessing the tort of passing off. This seems to be a particularly significant point given artists’ growing insistence on receiving copyright protection for their styles. If followed, this approach may help put an end to debates over the copyrightability of artistic styles, and redirect artists, who seek to derive benefits from their styles, towards the law of torts.
The third and final label was found to be even further away from the work at hand than the second one, and accordingly, not considered infringing. Interestingly, the claimant attempted to point out the similarities between the third label and the second label, rather than her work. Although one reason for this mistaken approach might be the absence of any substantial similarity between the work and the said label, the court rightfully picked up on this erroneous approach and rejected comparing the two labels.
On passing off
 |
| An exemplary collaboration between Ms Martin and brands (e.g., The North Face) involving the use of her work on their goods. |
After establishing the first factor, the court assessed whether consumers might be misled by any of the labels attached to the wine bottles. Although there was convincing evidence submitted by the claimant that at least two of her fans thought the wines bearing the first label was “fairly” hers (para 130), the existence of such confusion was not persuasively demonstrated in relation to the wines carrying the second or third labels. Thus, the court could not rule in favour of Ms Martin regarding the second and third labels.
Having found the existence of Ms Martin’s goodwill and a misrepresentation in relation to the first label, the court accepted that she necessarily suffered damages and allowed her passing off claim in relation to the said label alone.
Final remarks
 |
| A Kat enjoying her wall drawing with a glass of wine. |
Protection of artistic style, on the other hand, should not be over-emphasised or turned into a catch-it-all phenomenon that artists may invoke whenever they encounter imitation. Although it might have been possible to decide that the second label imitated Ms Martin’s style, leaving the assessment of the impacts of such imitation to the tort of passing off was the better and more reasonable approach to adopt. Discussing whether one’s style has provided them with reputation that justifies legal protection and whether presenting to the public an artistic work (or, as in this case, goods accompanied by an artistic work) in that style without consent amounts to misrepresentation, seems likely to be more fruitful than debating the copyrightability of style itself – an inherently abstract concept that does not fit neatly within the sphere of copyright law.
Image credit: ChatGPT
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