Protecting the Material World

21 October 2016

Season after season, upmarket designers produce runway looks which are then swiftly replicated and manufactured by more affordable chain stores. This practice – known as fast fashion – fuels the global fashion industry. But while some participants in this copycat economy simply draw inspiration from current styles and trends, there are others who push the boundaries by copying designs outright.

Copied designs can be attractive to consumers who would be reluctant, for instance, to pay $700 for a Self-Portrait dress when they could simply purchase a ‘Self-Portrait style dress’ from alibaba.com for around $30. But for the fashion industry as a whole, these cheap knock-offs can tarnish the exclusivity and desirability of leading brands and take money out of the hands of the talented designers who created the dress in the first place.

This is why Intellectual Property (IP) laws are a critical part of the multibillion-dollar fashion industry. These laws strive to protect the interests of designers, without going so far as to stifle healthy competition. That said, designers still face a number of obstacles when it comes to defending their IP. There is time and cost involved with pursuing infringers every season, as well as reputational issues, including opening themselves up to attacks on social media for ‘bullying’ smaller players.

Copyright

Copyright is an unregistered IP right which protects original creative works, including clothing designs, for up to 16, or even 25 years, depending on the particular article.

Last year, the New Zealand Court of Appeal upheld a claim by G-Star RAW that Jeanswest had infringed the copyright in their 5602 Elwood Jean. While Jeanswest only made $325 profit from selling its version of the jeans, the Court awarded G Star $50,000 in damages, plus interest and legal fees.

Drawings of the Elwood “Biker” Jean by G-STAR RAW (left) and the Jeanswest “Dean Biker” Jean (right) as used in the G-Star RAW case.

Drawings of the Elwood “Biker” Jean by G-STAR RAW (left) and the Jeanswest “Dean Biker” Jean (right) as used in the G-Star RAW case.

Registered Designs

A registered design can protect the external appearance of a manufactured article for a specified period of time, as long as it is new or original. While it may be impractical and costly for a designer to register every style they produce, a registered design might give valuable exclusivity to special cuts that will feature over a number of seasons, but in different colourways or fabrics. The catch is that the design application must be filed with the Intellectual Property Office before the garment is “published” to the world, so designers are well-advised to plan in advance.

Across the ditch, high profile designer Toni Maticevski recently announced on Instagram that his unique ruffle styles are now protected by Australian Design Registrations. It will be interesting to see if more Australasian designers with stand-out styles will follow suit.

Toni Maticevski

Extracts of Toni Maticevski’s Designs from the Official Australian Design Register

Registered Trade Marks

It is vital for designers to protect their brand names and logos. Consumers rely on branding to differentiate the products and services of one designer from another. They are loyal to brands they enjoy and have grown to trust.

Some designers will go to great lengths to protect their branding from unauthorised use, and rightly so. The exclusivity of designer brands is part of the reason why fashion houses like Chanel can command luxury prices year after year.

Registered trade marks are an especially valuable tool to counteract domain name squatters and similarly-named rivals. Infamous trade mark disputes involving New Zealand designers include RUBY vs Rubi Shoes, and Trelise Cooper vs Tamsin Cooper.

Extract from the New Zealand Trade Mark Register of a Swanndri Trade Mark which was applied for in 1913 and is still registered to this day.

Extract from the New Zealand Trade Mark Register of a Swanndri Trade Mark which was applied for in 1913 and is still registered to this day.

If designers are to thrive in the cut-throat world of the fashion industry, they need to understand how far they can go in looking for inspiration from other designers, as well as how they can safeguard their own livelihood from copycats. Consumers should also be mindful of the creative efforts which have gone into their favourite designs. While that $30 ‘Self Portrait style dress’ may seem tempting, it is this type of mind-set which is derailing the innovations of the fashion world.

Disclaimer: This article is intended to provide general information relating to New Zealand only, and is not legal advice. You should seek advice from your IP professional if you require advice particular to your situation.