Wednesday, 3 June 2009

New improved design law down under

Fashionista has received word from her Antipodean friend and fellow fashionista Lisa Lennon at Gilbert & Tobin of some interesting test cases under the new Australian designs law. Under the new legislation, designers can register fashion designs that are new and distinctive. Designs are simple to register as applications are immediately registered, but must be certified (examined) before they can be used to stop others from copying the design. The new law replaces the older system, which was considered toothless when confronting actual copycats – according to Lisa, the saying went that under the old law all designs were valid but never infringed. One of the notable changes is the requirement to give more weight to similarities than to differences when comparing a copy to a registered design. Minor changes will no longer get copycats out of hot water. All of this sounds like great news for fashion brands - but does the law work in practice?

Women’s fashion chain, Review, decided to roadtest the new law and sued three companies for allegedly copying one of their dress designs. In the Review cases, the Court found that two of the defendants had infringed Review’s design of a sleeveless cross-over dress (see above image). While the Court did not award Review damages for lost sales (on the basis that that women who bought the copy dresses were unlikely to have bought the more expensive Review dresses in any case) it did award compensation for damage to its reputation for originality - us ladies hate to see a copy of their latest designer purchase for sale at less than half the price.
Review was awarded damages of AU$17,500 in one case and AU$85,000 in the other. However, the deterrent effect on other would-be copiers is probably worth many times these amounts to Review. Lisa has heard that other designers are starting to take notice and she is aware of another designer who is considering similar action in relation to a discount copy of her dress design.
Fashionista would be interested to hear from its readers about their experiences of enforcing their rights in Australia - are they now more likely to take Court action under the new system?