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The value of your business includes your intellectual property and efforts should be made to protect this aspect of your business. Navigating your way through the law on intellectual property can be challenging.
The recent case in the Federal Court of Australia of Seafolly Pty Limited v. Fewstone Pty. Limited [trading as City Beach] FCA 321 ["Seafolly case"] provides a concise and up-to-date insight into the treatment of copyright in designs as applied to prints on fabrics for commercial clothing industries. This decision reflects an increasing number of enquiries we have received at Forum Law regarding the protection of the intellectual property of our clients.
In the Seafolly case the Court decided that City Beach had infringed the copyright of Seafolly in 3 of Seafolly’s original designs comprising 2 prints on its garments and 1 embroidery design.
In respect of the 2 prints the Court found that the prints were sufficiently original to attract copyright protection and on the evidence that City Beach had intentionally instructed its manufacturer to “knock off” the Seafolly designs and City Beach had provided the manufacturer with the Seafolly print to copy. In respect of the embroidery design the Court refused to concede the argument by City Beach that the embroidery was allowed to be copied because of a defence allowed in s.77 of the Copyright Act (Aust). This defence, in short, dilutes the protection of copyright to the original designer of a “design” [which may have a three-dimensional aspect like “embroidery”] where the design has been reproduced in the prescribed commercial quantities before the complaint is made. This principle is also referred to as the “Copyright/Design Overlap”.
Forum Law can advise clients on how to enhance the protection of “designs” including the copyright aspects of the design by registration of the design under the Designs Act before the manufacture of the product in commercial quantities. In the Seafolly case the Court allowed the protection of the “embroidery” design under the Copyright Act because the “embroidery” design was not embodied in the mass produced garments of Seafolly. The consequences of the decision against City Beach included the accounting by City Beach to Seafolly for Seafolly’s substantial damages to reputation and lost profits.
Other types of intellectual property that Forum Law can advise on include trademarking and common law rights. In short Forum Law advises clients that in order to assert rights to intellectual property the effort must be taken to attach rights to the intellectual property by attaching a name or a brand to your designs or works to make it clear that the design or work belongs to you and to engage the legal protection available in the Copyright Act, the Designs Act and the Trademarks Act here and overseas to enhance that protection.