Does another retailer’s store fit-out look just like yours? There are ways to protect your store fit-out from being replicated by competitors, writes Lisa Egan.
Many fashion retailers invest significant money and time in designing a unique and innovative store fit-out. Along with your name, logos and designs, your store fit-out is a crucial part of your branding and often provides customers with their first impression of your product.
There is also no doubt that in the highly competitive fashion retail industry, the set-up and presentation of ‘flagship’ stores is now a vital part of any marketing strategy. Yet, most retailers don’t realise they can protect themselves from competitors copying their unique store fit-out. So what can you do to protect your store fit-out from being replicated by competitors?
Copyright the plans for your store fit-out
If you think someone has copied your store fit-out you may be able to make a claim for copyright infringement of your fit-out plans. In Australia, there’s no registration system for copyright. Fit-out plans (like other two-dimensional works) are automatically protected as copyright works when they come into existence, and protection lasts for a period of the life of the author, plus 70 years.
This means you have automatic copyright protection in any plans that dictate the fit-out of your store, assuming you are the owner of the plans. There are now also cost and time effective courts in which to bring actions concerning straightforward cases of copyright infringement.
Copyright in store fit-out plans is infringed if someone else’s store fit-out reproduces (or reproduces a substantial part) of the plans. What is a substantial part of the plans is assessed qualitatively rather than quantitatively, having regard to the importance of the part of the plans taken in respect of the plans as a whole.
An example of how this test works in practice is demonstrated by a recent Federal Court case that was brought for breach of copyright in plans for project homes. In this case, Barrett Property Group successfully established that Metricon Homes had infringed copyright in its house plans.
Even though Metricon Homes’ plans were not identical to the Barrett Property Group plans, the Court confirmed that what Metricon Homes had copied was both qualitatively and quantitatively a substantial part of the Barrett Property Group’s house plans, including an “alfresco quadrant” comprising a kitchen, meal area, rumpus room and outdoor area under a single roof line. Metricon Homes was also found to have infringed copyright in Barrett Property Group’s house plans by building homes in accordance with its infringing plans.
A registered trade mark for your store fit-out can be an effective deterrent Trade marks are often seen as a way of protecting a trading name or logo, and few people realise trade marks can be used to protect other key aspects of their brand.
While a relatively new and developing area of trade mark law, a number of trade marks have recently been registered to protect store fit outs, layouts and store fronts. A registered trade mark of your store fit-out can act as a strong deterrent to copyists, especially if you display a sign in your store indicating the store fit-out is a registered trade mark.
In order to obtain a trade mark to protect your store fit-out, you will need to show consistent use of all aspects of your store fit-out. Whether you have one retail store or a chain of stores, your store fit-out is a vital part of your branding. Owning copyright in the plans for your store fit-out and registering trade marks can be effective in enforcing the exclusivity of your store fit-out design.
Lisa Egan is a senior associate at Middletons. The law firm has extensive experience in dealing with intellectual property issues faced by the fashion industry.