Decision: Roadget Business v Whaleco
Court: High Court (Intellectual Property List)
Judge: Mrs Justice Bacon
Citation: [2026] EWHC 2165 (Ch)
Decision: Here
Key issues: Marketplace liability

Published: 26 August 2026
Authors: Nichola Jenkins

Introduction

The ongoing commercial rivalry between fast-fashion giants Shein and Temu has evolved into one of the most significant intellectual property disputes in the e-commerce sector. While both businesses having built enormous global success through low-cost, digitally driven retail models, their recent litigation raises broader questions about copyright ownership, platform liability and the legal responsibilities of online marketplaces.

In August 2026, the English High Court handed Temu a notable victory in proceedings brought by Shein concerning the alleged unauthorised use of thousands of product photographs that appeared on Temu's platform. Shein argued that Temu had infringed its copyright "on an industrial scale" by allowing third-party merchants to use Shein's product images to market competing products. The court rejected Shein's claims and held that, even if copyright infringement had occurred, Temu would not have been liable in the circumstances. A parallel competition (counter-) claim, in which Temu has alleged that Shein forced suppliers into anti-competitive agreements, is also extant, with trial listed for March 2027.

At first glance, the dispute may appear to be a conventional copyright case. However, the judgment highlights several issues that are increasingly relevant to businesses operating digital marketplaces and platform-based business models.

Background

The claim dates back to 2023, with Shein sending a letter of claim alleging infringement of 8,036 Temu product listings. It subsequently applied for interim injunctions, which were granted in September 2023 and September 2024, both supported with cross-undertakings in damages from Shein. In response to the interim injunctions, Temu removed the notified product listings. The claim went to trial in May 2026, with judgment being handed down in August 2026.

Copyright ownership still matters

One of the noteworthy features of the case was the court's scrutiny of copyright ownership. Shein faced difficulties establishing that it owned all of the rights it sought to enforce at the relevant time. In relation to certain photographs, ownership and licensing arrangements within the Shein corporate group became a key issue. As a result, by trial, Shein had abandoned its claims in respect of all agency works and the majority of supplier works, leaving five trial sample works: four employee works and one supplier work.

The lesson for businesses is straightforward but often overlooked. Effective IP enforcement begins with clear documentary evidence of ownership. Companies that commission content from photographers, agencies, contractors or affiliated group companies should ensure that copyright assignments and licences are properly documented and regularly reviewed. In large, international organisations, gaps in ownership records can undermine even the strongest infringement claims.

Allegations

Of the remaining images, Shein alleged infringement under sections 17 (direct copying), 20 (communication of a copy to the public) and 23 (possessing and distributing a copy which the defendant knows to be an infringement) of the Copyright, Designs & Patents Act 1988.

Jurisdiction in a borderless digital economy

The allegations exposed the continuing tension between territorial intellectual property rights and global digital infrastructure.

Under section 17, Shein originally argued that Temu reproduced its photographs, but that aspect of the claim was not pursued because the relevant servers were located outside the UK. Shein therefore pivoted, arguing that there was infringement because Temu authorised users of Temu’s UK website to reproduce the photographs on the user’s web-browser. To this, the Court held that Temu had not authorised the reproduction and had a defence under section 28A. The latter explains that copyright is not infringed by the making of a temporary copy which is transient or incidental, which is an integral and essential part of a technological process and the sole purpose of which is to enable a transmission of the work in a network between third parties by an intermediary and which had no independent economic significance.

As to section 20, this failed because providing the means for users to upload and access content was insufficient to amount to communication. Rather, a deliberate intervention with full knowledge of the consequences was required, which the court held that Temu lacked. Section 23 also failed because Temu removed the listings before acquiring the requisite knowledge.

The issue of jurisdiction is increasingly important for businesses whose content is distributed globally. Copyright remains fundamentally territorial, yet online platforms frequently host, process and deliver content through infrastructure spanning multiple countries. The outcome demonstrates how the location of servers, data processing activities and platform architecture can materially affect enforcement strategies.

The growing importance of marketplace defences

Perhaps the most significant aspect of the judgment is its treatment of intermediary liability.

The court found that Temu acted principally as a marketplace hosting content uploaded by independent merchants. Mrs Justice Bacon concluded that Temu prohibited infringing uploads, did not authorise infringement and lacked the necessary knowledge of the alleged infringements. As a result, Temu could potentially rely on the so-called "hosting defence" available to intermediaries.

This finding is likely to be welcomed by operators of online marketplaces, app stores and other digital platforms that rely upon third-party content. It reinforces the principle that platforms will not automatically become liable for infringing material merely because it appears on their services, provided they maintain appropriate compliance measures and respond to infringement notifications effectively.

For rights holders, however, the decision illustrates the practical difficulty of pursuing platforms rather than individual sellers. As e-commerce ecosystems become increasingly dispersed across multiple jurisdictions, enforcing copyright may become more procedurally complex and potentially more costly.

Undertakings

Shein having been unsuccessful, it fell to be considered whether, as a result of its cross-undertakings, it was liable for Temu’s damages given the interim injunctions (incorrectly) granted.

Shein argued that the injunctions only applied to the use of the images and that Temu’s decision to remove the listings broke the chain of causation. In response, Temu explained that it did not permit listings without images, so by default an injunction to prevent the use of images was an injunction to remove the listings.

The Court agreed with Temu, finding its conduct reasonable. It follows that, subject to any appeal, Shein will be liable for any damages.

A sign of things to come

The dispute should not be viewed in isolation. Shein and Temu are engaged in broader global litigation and competition-related claims as they compete aggressively for market share across international markets. Temu's competition law counterclaim against Shein remains ongoing.

More broadly, the case reflects a growing shift in intellectual property disputes. Increasingly, the key legal question is not whether copying has occurred, but who should bear responsibility when infringing content is uploaded by third parties onto large-scale digital platforms.

As legislators and courts continue to grapple with the balance between protecting rights holders and enabling online commerce, platform liability will remain a critical area of legal development. Businesses that create valuable content should ensure robust ownership and enforcement frameworks, while platform operators should continue investing in notice-and-takedown procedures, seller compliance obligations and IP governance systems.

The Shein v Temu litigation therefore represents more than a dispute over product photographs. It serves as an important marker of how copyright law is adapting to the realities of global digital marketplaces and offers a glimpse into the future direction of online intermediary liability.

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