How Australian design laws are failing to protect our emerging local designers against fast fashion knock-offs.

Our client is angry. She is an emerging Australian fashion designer who has spent the last five years saving her money to hustle after work and create her unique clothing patterns.

Since launching her new label, a print-driven, label for sizes eight to 18, our client has had to battle against copycats stealing her prints and mass-producing her creations.

‘Ideas theft’ can happen so quickly, that emerging designers may not even realise their work has been stolen and copied until the product hits the shop floor or pops up on social media feeds worldwide. In one quick scroll through Instagram, a fast-fashion label can manufacture an overnight knock-off, leaving designers like Cassie with no affordable legal action or recourse.

“To know someone is simply looking online at my designs and then reaping the profits is absolutely heartbreaking for any artist, let alone a designer who is not yet fully established or breaking even,” our client said.

How, in Australia, does this keep happening to our talented emerging designers? 

Since the inception of fashion, designers have worked hard to protect their Intellectual Property (‘IP’). However, Pablo Picasso once said, “good artists borrow, great artists steal”. So is this the new design motto in our digital consumer age?

Under the Copyright Act 1968 (Cth), Australian IP law offers designers automatic copyright protection when they simply draw their design on a piece of paper. However, where the loophole exists is once that design is manufactured and produced into a garment. This extinguishes the designs initial copyright protection.

To fight back against fast fashion copycats, the current Australian regime requires designers to register each design under the Designs Act 2003 (Cth) provisions to receive infringement protection.

Registering a single design, let alone an entire collection, can be a very costly expense for emerging local designers. According to the Design Regulations 2004 (Cth) Schedule 4, an application for one design costs $250, plus the examination fee of $420, along with subsequent administrative fees.

The minimum amount of $670 per design is a huge expense for a young designer to fork out for their collections during the start of their careers in this fast-paced industry.

Unfortunately, even if young designers could afford these expenses, the rate of case success designers have in enforcing their design registration in Australia is low. Even powerhouse Australian brands such as Seafolly have landed in court on both the defence (2012) and prosecution (2014) side regarding copies of designs.

For giant fashion houses, ripped off designs might hurt their overall profits, but their reputation will remain largely intact. In some instances, brands like Isabel Marant became even more highly sought after and coveted once Zara’s knockoff designs hit mainstream consumers.

However, for Australia’s emerging fashion innovators the significant gaps in IP protection law have the potential to shatter a brand before it has even turned a profit.

The second issue is Australia’s high standards that apply to granting design protection. The true issue lies in the strict testing of which designs constitute as novel, distinctive and exhibit individual character to receive registration.

The current limitations are due to Australia’s failure to modernise IP laws to reflect individual industries and keep up with the demands of 24/7 online consumerisms.

The cyclical nature of fashion requires flexible protection to encourage young designers to invest in their talent. Rather than legislation with the same principles applied across the board to authors, musicians, artists and other creative industries.

It is not only emerging designers feeling the pressure from fast fashion copycats. Experts specialising in Australian IP law have begun calling for regulatory reform to reflect the more progressive stance systems applied throughout the European Union (‘EU’).

How can we improve?

Europe, particularly our United Kingdom (‘UK’) counterpart has an unregistered design system. Australia has no such system in place.

The importance of the creative fashion industries to the economy is well known throughout Europe. The French fashion industry alone rakes in $150 billion annually. With the UK creative industries also booming in recent years producing a net worth of $128.4 billion.

The World Intellectual Property Organization (WIPO) acknowledged the need for reform and lauded the UK’s introduction of unregistered design rights. Emerging designers in the UK who cannot afford the costs associated with registered design can still be granted protection.

The first flexibility offered is that unregistered rights apply to both “whole or part of a design”, making these rights very versatile for the short-cycled nature of fashion.

This new secret weapon offered by the UK and the EU’s Design Regulation helps enforce safeguards for designers in any stage of their career to be protected against counterfeiters.

The utilitarian character in Australia currently does not even offer partial protection options to designers. Especially impacting those who haven’t raised enough capital to afford design registration expenses that are necessary with each new collection.

Fortunately, there is hope. Creative organisations, lawyers and industry heads, such as the Australian Fashion Chamber, have rallied for reform in Australia to reflect the design protection system modeled in the UK.

Since April 2019, IP Australia has initiated a holistic review of the design process to investigate areas for improvement. Read more about it here and have your say!

Established fashion houses and corporations may argue that expanding Australian laws will ruin the monopoly over designs and creativity. Young designers truly need government support to expand their businesses into prosperous brands and have cost-efficient and protective solutions against copycats.

All it will take is modern IP reform that will help the emerging fashion designer or the young innovator with little funds, but the brightest ideas, to become a serious player in the creative world stage.

 

Watch this space for a more in-depth discussion on unregistered design rights reform suggestions within Australia. By Tasha Aloni

📲 Feel free to contact Aspides for further information on Intellectual Property Protection and what areas of your business need to be assessed.

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