INSPIRATION OR RIP-OFF?

Is imitation truly the sincerest form of flattery: 

Even if a brand can afford to take the necessary precautions and register all or most of their designs, they are not immune from experiencing rip-offs. Copycats are not a new phenomenon disrupting the design world, as ‘imitation’ and inspiration has always been lauded as commonplace and fundamental to the creative industries. 

However, when does the act of copying or finding inspiration in another’s designs extend beyond flattery and into fraud? 

Firstly, why does this matter? Other than artistic integrity the effects of knock-off designs can greatly impact sales of the original item. The Council of Textile and Fashion Industries of Australia stated that they estimate that the entire design and fashion industry contributes to roughly $27.5 billion to the national economy. As such, the council noted that when rip-offs or counterfeit copies are made it reduces the value of the original and new work, which causes a loss in sales.  

Why do Rip-offs occur under Australian Design Law: The Theory 

Since 2003, contention amongst designers has arisen throughout Australian case law regarding the concept of what permits knock-offs to take place legally. 

There is a current gap present within Design law. Once a two-dimensional design is produced or manufactured into, say clothing, the designer is left with no form of automatic protection.[1] Due to a series of industry recommendations, regulatory bodies such as the Advisory Council on Intellectual Property (‘ACIP’) have recognised the need for IP reform to create automatic rights that align with creative designers and small businesses.[2] 

In the global digital marketplace, the fashion industry is facing unprecedented amounts of copying and infringement.[3] Although the Australian fashion sector is relatively young in comparison with global brands, the increased funding into innovation has attracted the Australian government to recognise the industries economic export potential.[5] 

A recent Australian imitation case identified the need for improved design protection when ALDI Supermarkets were seen to be selling two Australian design replicas from local industrial designers, Mark Tuckey and Siobhan Glass.[6] As a result, the Design Institute of Australia CEO reinforced the need for Australian IP law reform to reflect the comprehensive UDR (‘unregistered design rights’) protection practices offered in the UK and Europe and to join the Hague Agreement.[7] 

Commonwealth and European jurisdictions have a distinct automatic safeguard by adopting UDR systems that are highly relevant to fashion’s short seasons and industries with rapid design innovation.[8] The anti-copying rights adopted in England, New Zealand and Europe offer extended protection through a harmonised system of UDR and registered rights.[9] The exploration into jurisdictions in the UK’s improved avenues of design registration can provide respected insight into viable short-term automatic protection solutions.

What can Australia do moving forward? 

Australia is not only a season behind in the fashion game, but also slower to adopt IP reform principles previously integrated within other Commonwealth jurisdictions, such as the UK. The introduction of the UDR system in the UK allows automatic protection of three-dimensional designs, and their individual elements, against direct copying for a temporary period.[10] This system of short-term automatic protection over manufactured designs is supported by Article 25 of the TRIPS Agreement which emphasises the protection of ‘independently created’ designs.[11] 

In turn, it will provide designers with additional protection and avenues for legal recourse against knock-offs. The lauded system prevents blatant copying from third parties without the designer having to go through the costly and rigorous process of design certification prior to determining which seasonal pieces are most valuable.[12] The safeguards provided under UDRs will reduce monopoly rights while protecting legitimate new designs. 

The genesis towards UDR reform will provide greater protection over creations against copyists and assure emerging designers that recourse against infringement is available throughout all stages of the publication process.  

Future anti-copying reform will minimise the potential risks of knock-off infringements against fashion and industrial designs. Thus, concurrently encouraging innovative design and economic growth within Australia’s export design industry. 

Written by Tasha Aloni. 

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[1] Australian Government ‘Review of the Designs System Final Report’ (Advisory Council on Intellectual Property (ACIP), Australian Government, March 2015) [2.6].

[2] Ibid  [1.1].

[3] (n 10) [101].

[4] Australian Government ‘ALRC Report 74’ (Australian Law Reform Commission (ALRC), Australian Government, 31 August 1995) [3.63].

[5] (n 20); The Hon Julie Bishop MP, ‘Julie Bishop on why Fashion Week is about more than just clothes’, Mamamia (14 April 2014) <http://www.mama mia.com.au/news/julie-bishop-fashion-week/ > (accessed 17 October 2019). 

[6] Design Institute of Australia, ‘Aldi holds back furniture replicas from sale. DIA demands better design protection,’ (Web Page, 2019)< https://www.design.org.au/designindustry/jul18/copying-is-a-constant-problem-and-disruptor-for-australian-designers-weve-had-enough2>.

[7] Ibid.

[8] (n 20).

[9] Australian Government ‘ALRC Report 74’ (Australian Law Reform Commission (ALRC), Australian Government, 31 August 1995).

[10] Gladwin Legal, ‘How Effective are Current Design Laws?’ (Web Page, 13 May 2019) < https://www.gladwinlegal.com.au/how-effective-are-current-design-laws/>.

[11] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement]; (n 25).

[1] (n 25) [2.8.5].