Haven't I seen that fabric before...?

The increasing extent to which original fabric print designs are being copied is of growing concern to designers of original fabrics and the fashion designers who believe they are buying the fabrics on an exclusive basis. Deveaux S.A. is one fabric designer that has chosen to take a strong stand around the world to protect its fabrics and its reputation and ability to supply its fabrics on an exclusive basis against copyists.

The Deveaux Experience
Deveaux is a French-based designer, wholesaler and manufacturer of original fabrics. Deveaux's fabrics are distributed around the world by Deveaux's exclusive agents. In order to maintain the exclusivity of the Deveaux fabrics, Deveaux and its agents ensure that each original fabric designed at Deveaux is distributed to only a limited number of fashion designers and manufacturers. Deveaux's clients have come to expect that garments made with Deveaux fabrics will retain their exclusivity in each country in which they are sourced.

In early 2006, Deveaux discovered that an Australian manufacturer and retailer of fashion garments had, without the license or authority of Deveaux manufactured and sold garments which reproduced an original fabric print design created by Deveaux. Deveaux commenced proceedings against the manufacturer/retailer and its directors in the Federal Court of Australia, claiming copyright infringement of the original artistic work which comprised the print replicated on the fabric. The proceedings were ultimately settled out of Court and Deveaux was happy with the basis on which settlement was achieved.

Warning to Fashion Designers, Wholesalers and Retailers
Fashion designers who use copied fabric patterns in their garments and wholesalers or retailers who sell such garments may find themselves embroiled in court proceedings for copyright infringement, where the relief sought can include substantial damages or an account of profits (ie. all profits made by the wholesaler/retailer from sales of garments made from the copy fabric are forfeited to the copyright owner of the fabric design), injunctions and payment of legal costs.

Designers, wholesalers and retailers may be liable for copyright infringement if they knew, or ought reasonably to have known, that the print fabric they are using was a copy, or the garment they are selling is made from fabric which has been copied. This will be the case even if they do not commission the manufacture of the fabric.

Lessons for Fabric Houses, Fashion Designers, Wholesalers and Retailers
* Fabric mills who design original fabrics are at risk of losing customers if they are not able to protect the exclusivity of their fabric designs. Both agents and retailers will stop purchasing from a fabric mill where they see that the fabric they have purchased on an exclusive basis is appearing in other stores, this problem was part of Deveaux's motivation in bringing the action referred to above.

* The obvious lesson for wholesalers and retailers, of course, is not to buy fabrics that you know or suspect to be copied or to sell garments made from such fabric.

* Fashion designers should obtain written undertakings, indemnities and/or warranties from the manufacturers from whom they purchase fabrics or their Australian agents regarding the originality of the fabrics they are purchasing.

* Wholesalers and retailers should obtain written undertakings, indemnities and/or warranties from their suppliers as to the originality of the garments and the fabrics used in the garments that they are selling.

* Fashion designers should purchase their fabrics from reputable fabric manufacturers who are willing to supply the fabrics on an exclusive basis either worldwide or in a particular region. If you obtain your fabrics on such terms, then you will be able to sue copyists for infringement should the print fabrics you use ever be copied.

Companies like Deveaux who are original fabric designers, are no longer prepared to turn a blind eye to seeing their fabrics copied in the marketplace, causing the designer who purchased the original fabric to lose exclusivity in the fabric design. It is important for companies such as Deveaux to show their customers that they will take steps to protect the originality and exclusivity of their designs, and so it is likely that traders who do not take heed of the above warnings will face Court action over the use of copied fabrics.

The Deveaux experience has been mirrored by a number of other fabric mills, and Middletons has recently acted in several other similar cases involving approximately 8 separate fabric designs.

Please contact Tony Watson or Lisa Egan of Middletons on 03 9640 4273 should you need any advice in relation to the above issues.