In Australia, two-dimensional aspects of fashion designs, such as patterns and graphics, are automatically covered by copyright; however, the overall design of a garment can only be protected by filing a design application.
Once registered, the shape, pattern, ornamentation and overall appearance of the garment is protected for 10 years.
Speaking at the K&L Gates Fashion Law Breakfast event last week, IP partner Lisa Egan (pictured) said that as brands become more educated in terms of filing design applications, IP lawyers could see an increase in design infringement cases.
Ms Egan said that lawyers need to play an educational role with their clients to ensure they are protecting their work this way, and doing so prior to their garment being released.
“There used to be the ability to protect three-dimensional works through copyright but the legal position on that changed in 2004, so that has made it much more difficult for designers to be able to protect their styles,” Ms Egan said.
“It's really an education role around making sure they understand what they need to have within their businesses to be able to prove their own ownership and also be able to defend any cases made against them.”
Ms Egan said that design registration is not as cost prohibitive as most people assume it to be, and it gives them some “serious weaponry” to use if someone does copy them.
Designers who feel they have been copied and have registered their design begin by sending a letter of demand to the offender, and often the case is solved soon after that, Ms Egan said.
“These sorts of cases are usually resolved on the basis that the business is prepared to stop selling the garments and deliver them up for destruction, that there’s an amount paid to compensate in terms of a damages amount, and that they agree never to sell the garment again,” she added.
Ms Egan was joined at the event by fellow K&L Gates IP partner Jonathan Feder, as well as Seafolly CEO Anthony Halas and The Australian fashion editor Glynis Traill-Nash.
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