MELBOURNE: Apparel company Elwood Clothing has won a ground breaking copyright infringement case against high street casualwear brand Cotton On.
A statement released by national law firm and fashion copyright specialist Middletons earlier this month has revealed that in late December 08 the Full Federal Court delivered judgment in a copyright infringement appeal filed by Elwood Clothing, finding that Elwood Clothing owned copyright in a range of its T-shirt and swing ticket designs.
The finding had overturned the trial judge’s initial finding that a T-shirt and swing ticket design, which Cotton On employees admitted to copying from designs released by Elwood Clothing, did not constitute an infringement of copyright.
“This is an important decision that upholds copyright protection for designers and innovators of original clothing designs, and demonstrates that even though many changes were made to the Cotton On design this was insufficient to avoid infringement,” Middletons claimed.
The case concerned an original T-shirt design designed by employees of Elwood Clothing and known as “NewDeal”, which proved to be one of the brand’s best sellers, and a unique label design known as “Vintage Sport Swing Tag” which was used on a range of its garments including “NewDeal”.
Cotton On released a similar T-shirt to the “NewDeal” design in three different styles, as well as a swing tag similar to the “Vintage Sport Swing Tag” design. Cotton On designers gave evidence at the trial that they had made reference to the “NewDeal” design and the “Vintage Sport Swing Tag” design when they designed the Cotton On T-shirts and swing tag. Furthermore, the evidence led at trial revealed that these employees were told to use the Elwood Clothing garment and swing tag in order to design something that was “the same, but different”.
Trial judge Justice Gordon had found that the “NewDeal” design and the “Vintage Sport Swing Tag” design were protectable under copyright law as artistic works, but rejected Elwood Clothing’s submissions that the Cotton On garment and label designs substantially reproduced the “NewDeal” design and the “Vintage Sport Swing Tag” design.
However Elwood Clothing appealed these findings to the Full Federal Court of Australia who unanimously upheld the appeal. The case will now be sent back to the trial judge for a determination on damages.
Middletons said the case proved it was critical for designers to take care when referencing another person’s copyright work.
“The test for an infringement of copyright is not whether there has been an exact reproduction of the work, rather a person will be found to have infringed copyright if they have created a substantial reproduction of the copyright work in question.”
As part of its sponsorship of L'Oréal Melbourne Fashion Festival from March 15 to 22, Middletons will host the Middletons Fashion Law Breakfast at its Melbourne offices on March 17.
For more information or to register for the breakfast, email renee.herps@middletons.com