They say imitation is the sincerest form of flattery. I say that’s rubbish, especially for fashion designers. There’s nothing more frustrating than seeing a cheap knock-off of one of your unique designs on the racks, shelves of your competitors.
Imitation is not sincere or flattering. Having your signature design copied and sold for a fraction of the cost, damages your brand equity and decreases your exclusivity in the market. Established brands may be able to weather some loss of sales and damage to their brand. But for the up-and-coming designers, the impact can be devastating, as their entire brand may struggle to survive in the face of the cheaper knock-offs.
Fortunately for fashion designers, intellectual property (IP) laws in Australia may be used to protect your unique creations and put you in the front-row, when it comes to dealing with copycats. But it’s important to get the protection strategy right, as the wrong move can easily lead to another kick in the (stylish) pants, when you realise there may be little that can be done to stop the imitators.
Unfortunately, its another common misconception that copyright law is some kind of ‘magic bullet’ that can be relied on to stop a copycat in the fashion industry. It’s easy to see why because copyright can apply to ‘artistic work’ such as drawings, sketches, patterns or prints. Here in Australia, copyright is also automatically granted to the author or creator on creation of the work, without the need to register for copyright protection.
It’s also the exclusive right of the copyright owner to reproduce a two-dimensional (2D) artistic work into a three-dimensional (3D) form. With this in mind, you’ll be thinking: “If another designer releases a similar looking garment to my signature design, then that’s an infringement of my copyright!”. But before you go running with scissors in hand, let’s look at a couple of scenarios.
If we are talking about a unique 2D print or pattern, say an image that’s applied onto a t-shirt – then yes copyright will still apply in the printed image and a claim of copyright infringement could be levelled at the alleged copycat. But, proving that copyright infringement has occurred can be difficult, as you’ll likely need a ‘smoking gun’ to prove that actual copying has occurred. If a similar design was created independently and without knowledge of your design, then you’ll be out of luck relying on copyright law.
The alternative scenario is where the alleged copy takes on the shape or configuration of the garment itself. For example, a 2D design of a shirt being reproduced into an actual 3D shirt. In this case, whether or not you can rely on copyright protection, may depend on if the garment has been ‘applied industrially’ in Australia or overseas. As a general rule of thumb, when 50 or more articles of a product have been manufactured, the design of the product is considered to have been applied industrially. So, in this case, where another party makes and sells 50+ shirts, it’s no longer considered copyright infringement of the 2D design of the shirt or the artistic work. As a consequence, offering your garment on sale in retail outlets and the like, you’ll likely waive your ability to chase down the copycats using copyright law.
Although copyright law has several limitations when it comes to helping fashion designers out of a pickle, fortunately there is another form of IP that can come to the rescue for those in the know.
Many unique fashion products and accessories may be protected under Design law. Unlike copyright, design rights don’t automatically come into existence in Australia. You’ll need to apply to register your designs through IP Australia. Registered designs protect the appearance of new and distinctive designs and here in Australia provide up to 10-years of protection for the registered owner.
What makes design registration stand out from copyright, is that it doesn’t matter if actual copying has occurred or not. If your competitor’s design is similar in overall impression, then regardless of whether it was created independently or not, they may be infringing your registered design.
Design registration is sometimes the overlooked quiet cousin of patents and trade marks but should be considered a useful tool by fashion designers looking to protect their unique and commercially important designs, whether it’s a 3D product, or a 2D print or pattern. A registered design can be certified by IP Australia and provide the registered owner with an enforceable right to use and chase down an alleged infringer.
Because of the fast-moving and seasonal nature of fashion, products can have limited shelf-life. But it’s all the more reason for you to be almost hyper-vigilant about competitors and imitators. If you spot a copycat in the market or become aware that an infringing product is about to be released, it might be necessary to seek a Court injunction. Having a registered certified design in your arsenal ready to go, can be really useful in this situation.
The take home: anyone in the fashion industry should at least consider design registration for their products, patterns or prints before they are released or disclosed. It can make for a worthwhile accessory or statement piece for your business.