Touchstone Pictures 1999

There is also a difference between borrowing and stealing.

No one wants to be seen in the same outfit at a party.

Equally, designers do not want their original work replicated for the benefit of an individual or company without their knowledge or approval.

Design theft has always made up a portion of lost revenue for fashion brands. But a shifting dialogue in the clothing industry is now seeing designers and major fashion houses adopt a low tolerance approach and to fight back. The result is a brand new legal field blends law and fashion powerhouse industries.

Here are some examples of high-profile and successful law suits brought in the entertainment and fashion industries, how you can proactively protect your designs and what options may be available to you if your design is stolen.

Good Artists Borrow, Great Artists Steal

To draw inspiration is one thing, to contravene legislation is quite another.

Historically, the entertainment and fashion industries have traded in the exchange of creative ideas, as work from the past informs and shapes the present. The line between inspiration and innovation, however, has never been more blurred.

Of all creative fields, the music industry has enjoyed a long and glorious litigious tradition. Over the years countless artists have sued each other for copyright infringement. From Huey Lewis’ case v Ray Parker Jr; and The Rolling Stones v The Verve; to David Bowie and Freddie Mercury v Vanilla Ice. More recently, Pharrell Williams and Robin Thicke lost a record-breaking $7.4 million law suit initiated by Marvin Gaye’s estate for copyright infringement of “Got To Give It Up”. Ultimately, each case turns on the intersection between creative inspiration and infringing legislation.

It’s Not Blue, It’s Cerulean

As an emerging and highly-specialised area of law, fashion law covers intellectual property, business, finance and other issues impacting an item of clothing over the course of its life. In recent years, the practice of fashion law has exploded internationally. In the US, several independent fashion law institutes have been established to cater for growing demand for fashion law as a specialised field of study.

Litigation has since flooded the industry with a few major league cases paving the way for lesser known brands to sue for copyright infringement of original work.

Recent landmark cases have involved the likes of Converse shoes who sued up to 31 brands for copyright infringement of its Chuck Taylor All Stars sneaker design; Christian Louboutin who successfully pursued legal action against YSL for exclusive rights to manufacture shoes with a red sole; and pop icon Rhianna who successfully sued Top Shop for copyright infringement when her image was printed on T-shirts without her knowledge or permission.

Even top designers are finding that they are not beyond the long arm of the law. Yoko Ono has recently been sued for copyright infringement when she replicated the unique designs of a New York fetish designer.

Protecting Your Designs In Australia

The fashion law landscape in Australia is complex and relatively underdeveloped.

In Australia, the use of an idea or creative work without permission is regulated by intellectual property legislation. Australian law safeguards the intellectual property rights of fashion designers in four ways.

• Design law protects designs with commercial or industrial use
• Patent law protects new and useful inventions
• Copyright law protects original expressions and ideas
• Trade mark law protects your right to trade under your name exclusively. It is used to distinguish your goods or services and prevents a competitor from benefiting from your distinctive brand or reputation for quality.

Below is a checklist with some suggested ways to guard your interests under design, trade mark, copyright and patent legislation.

1. Register with IP Australia

In Australia, intellectual property is generated when you create a new or original work. For example, by designing an item of clothing.

To protect your design from being copied or misused, register your design with IP Australia. Registration prevents anyone from replicating the appearance of your garment, such as a shoe or handbag.

Before applying for design registration:

• Is your design new? This means that your design cannot be similar to anything else previously registered locally or internationally.
• Is your design distinctive? The overall impression or appearance of your design cannot be similar to anything else registered locally or internationally.

To ensure your design is original, research other designs using the IP Australia website.

If your application is approved, your intellectual property right gives you exclusive permission to use, control and profit from your design work.

2. Register your trade mark

To prevent a competing designer from piggy-backing on your brand name or label by offering a product that is substantially similar to your unique designs, register your trade mark. The Christian Louboutin v YSL case, for example, was fought entirely under trade mark law.

Before applying to register your trade mark:

• Search the Australian Trade Mark Online Search System (ATMOSS) to ensure no one has registered the trade mark before you.

A registered trade mark protects your right to sell your products exclusively.

Protection under trade practices and fair trading legislation can protect your trade mark rights against misrepresentation by competitors. However, litigation is typically more costly and time-consuming than simply registering your trade mark at first instance.

3. Copyright protection

In Australia, copyright protection protects your design upon creation if it is an original artistic work in material form. Fashion designs fall under the description of an ‘artistic work’ under the Copyright Act 1968 (Cth).

In order to receive automatic copyright protection your design:

• Must be in material form. This means it cannot be a mere idea. A sketch on a napkin, post-it note, scrapbook or smartphone app are sufficient. If you have commenced your artistic work in a material form then it is protected by Australian Copyright legislation from the time when you first write it in material form.
• Must be original. This means that your design cannot be copied from anyone else.

Copyright legislation does not protect your designs where someone has created the same, or a similar design, independently. An element of purposeful replication is required.

Always use a copyright symbol © [your name/brand/year] on your designs. This alerts others to the fact that your design is an original work.

Registration lapses after a certain period of time. See below:

Replicated from IP Australia.

4. Register your patent

To protect clothing or fabric that has a specific function, register your patent.

Registration for fashion designs is only available in certain circumstances since patents protect how a design works and not how the design looks. A patent will be relevant where you have developed new technology that has a specific function. For example, Speedo has patented new sportswear technology.

Sketch out a plan

The areas of law covering fashion design are complex and difficult to navigate alone.

If you suspect that someone is infringing your intellectual property rights, contact an IP professional. They will guide you through the costs and risks involved in pursuing an IP infringement, how to enforce your rights as well as your best course of action.

What experiences have you had with the fashion industry, design theft and enforcing your rights? Think we’ve missed anything? Leave us a comment below!

Further information

To register your design, trade mark or patent visit IP Australia.

For copyright queries contact the Australian Copyright Council.

To get in touch with a legal professional specialising in fashion law contact:

• Melbourne – Gi&Sanicki Lawyers
• Sydney – Media Arts Lawyers
• Sydney – Axis Legal; or
• Search the Australian Lawyers Directory for legal representation in your area.

For industry support contact the Council of Textile and Fashion Industries of Australia.

For a comprehensive guide to intellectual property for Australia’s clothing and fashion industry visit WIPO