Shein has lost its High Court claim against rival Temu over the alleged copyright infringement of photographs of its clothing, with Judge Kelyn Bacon ruling on Thursday that the online fast-fashion group’s claims had failed.
The case, which went to trial in London in May, centred on product photographs that Shein said had been used on Temu’s platform to advertise copies of Shein’s own-brand clothing. Shein accused Temu of breaching its copyright “on an industrial scale” and of using the images to “piggy-back” on a more established competitor.
Temu, which is owned by PDD Holdings, denied the allegations and argued that Shein was using litigation to stifle competition.
In her written ruling, Judge Bacon rejected Shein’s argument that Temu had authorised infringement by the third-party merchants who uploaded the photographs to its website, noting that Temu “prohibits merchants from uploading infringing content”. Shein did not pursue a separate argument that Temu had itself reproduced the photographs, the judge said, because Temu’s servers are located outside the United Kingdom.
The judge also found that, even if infringement had been established, Temu could have relied on the hosting defence, which shields online platforms acting as intermediaries from liability for content uploaded by third parties where they lack knowledge of the infringement.
“In so far as any infringements could be established in this case, Temu did not have either actual knowledge of the infringements or awareness of facts or circumstances from which the infringements would have been apparent,” Judge Bacon said.
A Shein spokesperson said there was no dispute that Shein owned the thousands of photographs it had sued over, or that they had appeared on Temu’s website. “Yet despite copying on an industrial scale, it has avoided liability in the UK simply because the servers supporting its UK website happen to sit in Ireland,” the spokesperson said.
Elise Cant, associate and trade mark attorney at intellectual property firm Marks & Clerk, said the court had found Temu’s role in relation to the use of the photographs to be of a “mere technical, automatic and passive nature”.
“The decision is likely to be welcomed by market-place based retailers although traditional retailers may view it less favourably,” Cant said. “It provides greater legal certainty for online marketplaces by confirming that platforms such as Temu which play a passive intermediary role in the advertisement and sale of goods on their website are less likely to face liability for infringing content uploaded by third-party sellers.”
Cant added that the ruling “may make it more difficult for traditional retailers and rights holders to pursue infringement claims against marketplace operators where infringing product listings are uploaded by independent sellers, potentially shifting the focus of enforcement efforts towards the sellers themselves rather than the platforms that host their listings”.
The judgment comes as both platforms face wider scrutiny in Britain. UK retailers have pressed the government to fast-track a tax crackdown on low-value imports sold by Shein and Temu, while Shein recently reported a $99m quarterly loss ahead of a planned Hong Kong listing.
