Review wins court action against Discovery Group

The parent company of Australian designer Charlie Brown has been fined nearly $18,000 after being found guilty of design infringement in the Federal Court.

The case, heard in Melbourne last month, was brought by womenswear chain Review which alleged The Discovery Group (TDG) had knowingly made and sold a dress similar to that already registered by Review.

The court heard that at some time prior to May 2005, Review designer Jayne Ellis designed a "new original dress" for retail distribution and on June 24 the same year applied to have it registered. The dresses were distributed for sale - through the brand's 15 standalone boutiques and its 19 Myer concession stores - in June 2005.

In September 2005 TDG began manufacturing a dress, branded 'Lili', which in January 2006 was passed to a contractor trading under the name Thuan Loi Fashion for production. Around 190 units of the dress were sold between July 2005 and February 2007.

Having purchased one of the 'Lili' dresses from a Charlie Brown store in Moorabbin, Review's solicitors wrote to TDG asking it to cease selling their version of the dress and warning that continued sale of the item would result in further legal action.

In response, TDG's solicitors said the design of the dress was the result of TDG "having derived inspiration from current fashion trends in Australia and overseas". TDG denied they had copied Review's design.

However following a statement of claim issued by Review in September 2006, TDG admitted they sold, offered to sell or disposed of a garment "that is identical to or substantially similar in overall impression to the Review Design".

Review argued that by TDG actions in selling a dress similar to its own, Review had lost its "claim to originality". A statement supported by the judge hearing the case, Judge J Jessup.

"If garments bearing a substantial similarity to those of the applicant started to appear in other outlets and under other brands, the consumer's perception of the originality of the applicant's designs would necessarily be weakened," the judge noted.

In dismissing TDG's claim that because it neither made nor offered to make the Lili dress it was not responsible for the breach, Judge Jessup found in favour of Review and ordered TDG to pay damages in the sum of $17,500.

By Tracey McEldowney