In his recent High Court ruling, Mr Justice Laddie had no hesitation in taking the rather unusual step of making an order for indemnity costs against the UK's largest magazine publisher, IPC Media Limited, following its defeat in a three-week copyright trial. The judgment and subsequent costs award highlight the need for publishers to review their position carefully and objectively before pursuing allegations of copyright infringement.

IPC, whose titles include Marie Claire and Country Life, had claimed that High-bury House Communications had copied key aspects of the design, subject matter, theme and presentational style of IPC's Ideal Home title, the market leader in the home interest sector, in its rival publication Home.

Although accusations and counter-accusations among magazine publishers, big and small, are common in the competitive magazine market, it is highly unusual for these kinds of disputes to go all the way to trial. The case of IPC Media Limited v High-bury Leisure Publishing Limited was the first to do so for several years.

Its result was eagerly awaited in the magazine industry. Similarities in the 'look and feel' of magazines have been commented upon in many sectors – most publicly and recently among the new weekly lads' mags Nuts (another IPC title) and Zoo, which are currently locked in a circulation war.

At the heart of this case was the allegation by IPC that the essential ingredients of its 'magic mix' for Ideal Home had been deliberately and systematically copied by High-bury's Home magazine. Dismissing the claim, Laddie commented that IPC had been prepared to make a serious allegation "without the beginnings of the evidence to support it". That position, however, is not unusual – copyright actions frequently start with the assertion "they must have copied".

The principles set down by the House of Lords in Designers Guild v Russell Williams (Textiles) provide the correct approach to considering such allegations: there must be a side-by-side comparison of the original copyright works and the allegedly infringing works.

IPC asserted that the comparison of the front covers and half-a-dozen articles in Ideal Home and the equivalent covers and articles in Home revealed similarities that were so close, numerous and extensive that they raised an inference of copying.

Typically, a defendant will argue that any similarities are only to be expected, particularly in circumstances where both magazines are writing about the same subject matter, reviewing the same products from the same high street retailers and are aiming their magazines at substantially the same readership – women aged 25 to 45 interested in mainstream home decoration in this case. Some similarities may be so commonplace, so unoriginal or consist merely of general ideas to such an extent that they should be disregarded in the process of this comparison.

In this case, however, having investigated precisely how all the complainedof designs had come about in great depth, Highbury unusually set out the origin and history of those designs in a highly detailed defence. This strategy appeared at the time to have little effect on IPC. Where Highbury had indicated that certain features could not possibly have been copied from Ideal Home because Home had introduced them earlier in time, IPC sought to go even further back in time suggesting that all elements of which they made complaint had originated at some earlier point in IPC's Ideal Home magazine and had been copied from earlier editions of the magazine.

The judge also emphasised the need to identify and isolate the actual copyright works alleged to have been copied – rather than certain design elements within such copyright works.

As Laddie pointed out: "The law of copyright has never gone as far as to protect general themes, styles or ideas."

The alleged similarities in this case were frequently at too high a level of abstraction. The judge warned against IPC's attempt to concentrate on general phrases such as "design, subject matter, theme and presentational style". He concluded that the absence of greater specificity in IPC's claim was not an accident and that, on occasion, it appeared opportunistic.

Differences can be as important as similarities when attempting to establish whether copyright has been infringed, as these can act as indicators of the origin of a particular design feature. Laddie emphasised that the court should be alert to claimants ignoring the parts which were not copied, and creating "an illusion of copying of what is left". He concluded that in this case IPC had ignored the enormous number and visual importance of the differences between the parties' respective magazines so as to create what he termed a "similarity by excision".

An allegation of copyright infringement has at its core an allegation of creative dis-honesty. It is a considerable ordeal for a magazine designer or editor who is accused of this sort of copying to recall in detail precisely how the design and layout of particular pages was conceived and put together, knowing that his or her recollection will be tested under cross-examination in court.

That ordeal will be exacerbated by the length of time it takes for such a complex case to reach court. The ordeal can be ameliorated, however, by setting out the full design history in a very detailed defence at the start of the action when recollections are clearer. On the facts of this case, Laddie had no difficulty in concluding that IPC had done nothing to displace the weight of the evidence from Highbury's witnesses that Highbury did not copy.

This case demonstrates also the vulnerability of a magazine facing allegations of this sort, particularly when such allegations are advanced by a bigger competitor (in this case, the biggest magazine publisher in the UK). When James Mellor, counsel for High-bury, asked with a forensic flourish: "What more could a defendant do to protect itself against an unreasonable claim?", Laddie responded by commending Highbury for setting out its case so extensively and so early on. He commented that Highbury had kept knocking on the door trying to persuade IPC to look at the defence with "unclouded eyes" – but, unfortunately, to no effect.

In the end nothing can dissuade a determined claimant from having its day in court. However, the costs award against IPC highlights the high risks involved in a strategy of making allegations without evidential support in the hope that something might turn up.

This case is a reminder of the need for proportionate conduct at all times when handling copyright disputes. It sends an important message about the benefits of clear and specific, rather than general and elusive, pleading and also sounds a warning bell for those who seek to extend the ambit of copyright protection into the realms of protection for formats and other nebulous 'look and feel' rights.

Andrew Joyce is a partner at Wedlake Bell and acted for Highbury House Communications in the case.