LawAnswers.com.au - Australia's #1 Legal Community

LawAnswers.com.au is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

QLD Is Adapting a Design a Breach of Copyright?

Discussion in 'Intellectual Property Law Forum' started by RJBLegal, 2 June 2016.

  1. RJBLegal

    RJBLegal Member

    Joined:
    2 June 2016
    Messages:
    3
    Likes Received:
    0
    Sardinia Pty Ltd, an Australian company, made in Australia a computer design drawing for the design of a range of sportswear for the youth market. The designers were directed to create a product with the same look and feel yet different to the sportswear of Sicily, an international competitor in the same youth market.

    Sardinia
    took and adapted the idea of a cube shaped graphic and the placement of text and symbols within that cube shaped graphic similar to Sicily sportswear but with different text and symbols and instead substituted its own text and symbols.

    Can anyone help me with legal issue here under intellectual property law, other than resolving the determination between Copyright and Design?
     
  2. Victoria S

    Victoria S Well-Known Member

    Joined:
    9 April 2014
    Messages:
    446
    Likes Received:
    44
    Do Sicily have distributors in Australia?

    This is not a copyright but a trademark issue. Trademarks must be registered in the country that they are used in to be enforced as such (however there are also ways of suing without having registered a TM in Australia such as passing off). Whether or not your TM will be "deceptively similar" to that of Sicily, is a matter of interpretation for the court and cannot be assessed by which numbers, letters or symbols have been changed or which are the same. An assessment of whether a TM is deceptively similar depends on its overall appearance, not individual components.

    Are you trying to come up with a logo? Or are you being sued for your logo?
     
    RJBLegal likes this.
  3. RJBLegal

    RJBLegal Member

    Joined:
    2 June 2016
    Messages:
    3
    Likes Received:
    0
    The subject of the matter is in regards to hypothetical grounds. I do appreciate greatly your response and we have seem to be met with an a likeness to viewpoints. I agree at large with this being a trade mark issue. Furthermore I also pondered on the position of law of design as it stands today with regards to the industrial application and how by virtue of existence does the design act limit the right and term of a copyright owner of an artistic work?
     
  4. Victoria S

    Victoria S Well-Known Member

    Joined:
    9 April 2014
    Messages:
    446
    Likes Received:
    44
    Sorry I'm not sure I'm following...are we talking about "computer design drawings"? Are we talking about the actual clothing designs? Or a TM design? I got the impression it was the latter.
     
  5. RJBLegal

    RJBLegal Member

    Joined:
    2 June 2016
    Messages:
    3
    Likes Received:
    0
    Sorry for the confusion, I was referring to design imprinted on sportswear, like that compared to the brands logo. Example 'Nike', Puma, Versace etc.
     
  6. MVBS

    MVBS Member

    Joined:
    7 December 2015
    Messages:
    1
    Likes Received:
    0
    I would also love to know the answer to this question at the end #5.

    Thank you
     
  7. Leonard Mancini

    Joined:
    4 August 2016
    Messages:
    6
    Likes Received:
    0
    Old post but I wanted to add something here.

    Copyright is likely to be an issue irrespective of whether the graphic and symbols used on the sportswear are not infringements of anyone's trademarks, which could be the case if the originator registered those graphics and symbols in class 25 for clothing.

    Copyright would still be relevant as the "look and feel" of a 2D graphic emblazoned on a garment for its aesthetic appeal (not trademark use) could constitute trademark infringement.

    Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197 decv
    Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197 (23 December 2008)

    Further, as the 2D works are applied for pattern and ornamentation purposes and do not contain elements of shape and configuration which have been translated into aspects of the garments shape, the 2D artistic works will not be regarded as a corresponding design under the Copyright act provisions and accordingly it could still be enforced notwithstanding the industrial application of the 2D artistic work.

    The decision in the case of Sea Folly would also be of interest here as it involved a similar look and feel type approach as to whether a reproduction of the 2D works of fabric patterns had occurred.

    Both decisions would suggest to be very wary about copying patterns and fabric prints from other designer's garments.
     

Share This Page

Loading...