Registered Designs Becoming Fashionable
Changes in 2003 to the Copyright Act 1968 (Cth) and the introduction of the Designs Act 2003 (Cth) preclude fashion designers from relying on copyright to protect their garment designs. In order to seek protection for their garment designs, designers must now register the designs with IP Australia.
In September 2007, the Australian government released the Fashion Rules guidebook and accompanying website (www.ipfashionrules.gov.au) to increase awareness in the fashion industry of intellectual property rights and the changes affecting the industry.
Registered designs haven’t traditionally enjoyed widespread use in the fashion industry. Commercial decisions relating to fashion designs are often made after the designs are exhibited in fashion shows. However, in order to obtain valid design registrations, design applications need to be lodged prior to their exhibition in any fashion shows, catalogues or websites.
Despite this obstacle, fashion designers are now increasingly using design registrations to protect their designs.
In a recent decision by the Federal Court of Australia, the first decision relating to fashion design infringement under the Designs Act, a fashion designer and retailer, Review Australia Pty Ltd (Review), was successful in obtaining damages from rival Innovative Lifestyle Investments Pty Ltd (ILI) for the infringement of its registered design for a dress (Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74).
Commenting on the case, Peter Strain, a director of Review, said that “This decision confirms that the Courts are willing to recognise original clothing designs that are created by Australian designers and protected through the Australian design registration system” and that “Review is committed to protecting its original designs through the design registration regime”.
Please contact Cotters if you would like any further information about the changes or if you wish to request examination on any pending patent applications.
By Marcus Dalton
Cotters Patent & Trade Mark Attorneys
7 July 2008
