The fashion industry is rife with stories of knock-offs, copycats and replicas. In the lead up to the Spring Racing Carnival in Victoria, milliners have publicly slammed fast fashion stores for ripping off their bespoke designs. Under Australia’s current copyright and design laws, there are some avenues available to designers to protect their designs. However, these have limitations and there are calls for an overhaul of this complex area of intellectual property law.
Through an Australian design registration, for instance, a designer can register the unique visual features of a product, such as its shape, pattern or ornamentation. Examples include a two–dimensional pattern applied to textiles such as a tea towel, or the three-dimensional design of the ruffles on a dress. To qualify for design registration, a design must be new and distinctive. Importantly, design protection will not be available if the design has been publicly exposed (e.g. photographed and posted on a website or sold) before the design application is filed.
Some well-known fashion brands habitually register all or many new designs. For example, Zimmermann has recently registered a number of dress designs. However, given the fast turnover of products in the industry, some do not consider design registration to be a commercially feasible form of protection, especially for small designers/labels.
Copyright is another avenue of protection available to designers. Unlike design registration, copyright protection arises automatically. Copyright protection is available for ‘artistic works’, which include sketches and patterns for clothing and accessories. However, it does not generally provide protection in respect of the actual garments themselves. Designers should be aware that copyright protection in an artistic work may be lost if the copyright owner allows the 2D artistic work (e.g. drawing of a dress) to be applied to a 3D object (the corresponding dress design) and industrially applied (i.e. the design is applied to 50 or more articles). A loss of copyright protection means that legal action could not be taken against a copycat. Therefore, if 50 or more products are likely to be made, design registration will offer the best protection.
Elaborate one-off pieces, such as hats, jewelry, bags and clothing may be considered works of artistic craftsmanship and attract copyright protection. A work of artistic craftsmanship must have an element of craftsmanship and be intended by its creator to have aesthetic appeal. What constitutes a work of artistic craftsmanship is decided on a case-by-case basis. A one-off millinery creation may fit the bill as it has been produced through the skill and specialist knowledge of a milliner. In such a case, there is unlikely to be any defense to infringement if a copy is made. However, if a designer chooses to protect the design by way of a design registration, copyright will be lost.
The areas of designs and copyright law are tricky ones for designers (and lawyers) to navigate. The best way to protect and enforce your designs depends on your commercial objectives, your IP budget and the type of design/product you are seeking to protect.
ANITA BROWN is a member of Phillips Ormonde Fitzpatrick’s trademarks team and has more than 10 years’ experience in trade mark clearance work, prosecution, oppositions and enforcement, both locally and internationally. She has also been involved in proceedings before the Australian Trade Marks Office and the Federal Court of Australia.