Tough win for copied brands

NATIONAL: Australian fashion brands are fighting to protect trade marks and unique design, but in many cases it is a losing battle.

In the 2008/09 financial year, IP Australia, the patents and trade marks office, recorded 1803 trade mark oppositions across all categories of business, up from 1712 the previous year.

Principal of Choy Lawyers and former intellectual property advisory council member Trevor Choy said a sizeable portion of this figure would apply to fashion brands.

“There is a little bit of predatory branding, where people have thought, this is a successful brand, so instead of coming up with something completely original they sail closer to what is there,” he said.

Choy explained that increased competition saw brands scrutinise new trade mark applications more thoroughly, with the name, logo and slogan reviewed.

IP Australia director of marketing and customer engagement Peter Willimott outlined two ways for existing brands to oppose a similar trade mark. When brands apply for a registered trademark, there is an opposition period where competitors can express concern about similarities. The second is to issue a formal cease and desist letter.

“A trade mark embodies everything you strive to create in a business,” he said. “When someone wants to benefit from that, action needs to be taken.”

Design infringement complaints are also rising, with Choy surprised at the increase over the last six months.

He said it was a tough issue to conquer, as copyright laws were not set up to protect fashion.
“The laws were designed long ago before mass fashion production,” he said. “Technology allows it to happen and the laws haven’t really caught up with it.”

Subtle design details such as colours or textures were not well protected, he explained, but more obvious structural designs such as an unusual statement lapel were better covered.

To fight, legal costs could be as much as $200,000, which for many brands is out of reach, or not worth the money the garment would have generated in sales.

“The lower market end will say, ‘why dont we just copy – we are not looking at great volumes’,” he said. “We get more copying here than many other countries. They know they are not likely to get sued – they know historically they can get away with it,” he said.