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Protecting designs past the cutting room floor

Protecting designs past the cutting room floor

Middletons will host a seminar on infringement of copyright and protecting designs on Tuesday as part of its gold sponsorship of the 2009 L'Oreal Melbourne Fashion Festival.Tony Watson, a…

Middletons will host a seminar on infringement of copyright and protecting designs on Tuesday as part of its gold sponsorship of the 2009 L'Oreal Melbourne Fashion Festival.

Tony Watson, a partner at Middletons, said the seminar will cover a number of cases in which designers have "gone out on a limb" to protect original creations and which have set precedents for the fashion industry.

One of the cases involves Elwood clothing which, on appeal to the Full Court of the Federal Court, successfully challenged Cotton On for infringing copyright by substantially reproducing an original motif on a t-shirt.

"The significance of that decision is that it gives a great deal of clarity as to what you can and can't do. I'd love a hundred dollars for every time someone asks me the question 'How much do I have to change not to infringe copyright?'" he said.

"So often they think if 'I change 10 per cent, that is no longer an infringement of copyright'. What this case clearly shows everyone is that, even though a lot of people might look at the two [motifs] and say 'They are not very similar, look there's change of fonts, it's a different animal, it's a different number', in the overall appearance you could obviously see where one person had reference to create the second one."

Watson said the Copyright and Designs Act was amended in 2004 so that copyright protection no longer existed over dressmaking patterns, which meant that designs need to be registered.

Review Australia was awarded damages of $85,000 for a rival's reproduction of their registered design of a wraparound dress, which demonstrated the importance of protecting ideas, said Watson.

"[The case] gives some encouragement to applicants that the court will recognise that designs have value commercially and that if someone reproduces your design you lose the value of the exclusivity of that design," he said.

Review employs a design team of 19 people working full time, who create 650 new designs each year, said Watson.

"If we let people just go and rip things off the shelf and copy them, then we can kiss goodbye to those 19 people having a job, because there will be no job for pattern makers, for designers and for models because Review will not be able to expend the money on that sort of original design work if we can't protect it," he said.

"So we think it's very important to obviously Melbourne's fashion industry ... a lot of my clients still manufacture here in Australia. It's a pretty important part because, not only do they have the original design aspect, they are also interested in the quality side of manufacture."

- Sarah Sharples

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Protecting designs past the cutting room floor
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