CAD crucial in Federal Court ruling

MELBOURNE: Independent apparel brand Elwood has had an alleged design infringement case against national retailer Cotton On Clothing thrown out of the Federal Court.

The Melbourne-headquartered brand had alleged that Cotton On had committed an offence under the Copyright Act through the use of two computer design drawings. Cotton On later counter-claimed that cease-and-desist letters sent to it by Elwood's solicitors constituted "groundless threats" of infringement.

The original case, headed by Justice J Gordan, centred around and the arrangement of text and graphics on an Elwood T-shirt design dubbed 'NewDeal' and a swing tag referred to as 'Vintage Sport Swing Tag'.

The court heard Cotton On, represented by Griffith Hack, also produced product with a similar design that featured different text but similar graphics, colours and layout to the Elwood items. Elwood's solicitors Middleton's contended the introduction of the Cotton On garments into the market effectively "killed" sales of its own product.

In issuing his ruling Justice Gordan said that while under cross examination Cotton On employees had conceded they were directed to create products using the Elwood designs as a reference, the finished articles were not identical.

"What Cotton On took and then adapted was the idea of the V shaped graphic and placement of the text and symbols within that V shaped graphic. Cotton On did not copy the text or the symbols on the NewDeal print. I cannot say that the NewDeal print and the Cotton On T-shirt make the same visual impression on me as the other. The text and symbols matter. The colours matter. I cannot say that what is conveyed by the two prints is the same - it is not."
His analysis in relation to the swing tag was similar.

"The form, shape and placement of the graphics was taken by Cotton On. I accept that the shape of the graphic is important or crucial to the design and success. However, as with the NewDeal print, what Cotton On has admittedly taken is one integer of a series of integers which together constitute the copyright work. And the integer taken is, in fact, the idea and not a substantial part of the work," the judge said.

In relation to Cotton On's counterclaim, Justice Gordan said it was apparent the threats were not made to a third party but to the casualwear company itself.

He noted there was no evidence of any "damage" flowing on to Cotton On in the time between the threats being made and the commencement of the court proceedings.

Justice Gordan ordered that both Elwood's infringement claim and Cotton On's counterclaim be dismissed and that Elwood pay Cotton On's costs.

By Tracey Porter