Fashion follies

Article  \  4 Sep 2014

Leading Australian swimwear brand, Seafolly, has won a long-running lawsuit against Fewstone (trading as City Beach) who copied its bikini designs.

The bikini battle lasted almost two years and cost City Beach $250,000 in damages.

The court case centred on Seafolly's top bikini designs-its English Rose print bikini, popular Covent Garden floral design, and Senorita prints.

City Beach was found by the Federal Court to have knocked-off Seafolly's bikini designs, and then sold them in its 60 stores Australia-wide under its own brands.

This decision follows the earlier decision of the Full Federal Court in Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197. In that case, Cotton On and its designers had used the Elwood Clothing designs as a reference to create a product with 'the same look and feel' as the Elwood clothing but would have enough differences not to constitute an infringement of the copyright of Elwood Clothing.

Copyright infringement

City Beach created three designs with 'the same look and feel' as Seafolly. While there may have been some differences with visual elements, infringment occured because of the style, selection, layout and arrangement design elements were copied.

The Federal Court has again made it clear there are considerable dangers in riding on the coattails of successful styles in the fashion industry. It is important to make sure your designs are original.

While this case centred around copyright infringement, it was comments made by Leah Madden, the swimwear designer of City Beach, that provided another lesson. And it serves as a helpful reminder on the use of Facebook pages.

Facebook page comments went viral

The story starts in September 2010 when Leah Madden made comments, on her personal Facebook page which was also the page of her swimwear business 'White Sands', that Seafolly had copied eight of her swimwear designs.   The comments Madden made on her Facebook page subsequently went viral. 

Concerned, Seafolly responded quickly by denying any allegations of copying.

They also began proceedings against Madden claiming that as Seafolly had not copied City Beach's designs, the statements made by her constituted misleading and deceptive conduct under the then applicable Australian Trade Practices Act 1974 (Cth).  Seafolly won at the Court of First Instance. Madden appealed. 

In her appeal, Madden argued that the statements she had made on her personal Facebook page were not 'in trade or commerce'.  This argument was rejected by the Federal Court stating that the comments could not be seen as private.

The Federal Court also approved the findings of the Court of First Instance and said the statements were made by the principal of a company and  directed at the commercial activities of a competitor. The Federal Court also found that many of the people who made comments on Madden's Facebook page were in the fashion industry. Her postings on her personal Facebook page used both her own name and the name 'White Sands Swimwear Australia' when responding to the postings of her Facebook 'friends'.  Her comments fell within the range of 'in trade or commerce'.

So what are the lessons to be learned from this?

First, before you start alleging that someone has copied your designs, make sure you are correct.  Do your research and get legal advice - the costs of being wrong can be high.  Madden found that out to the tune of $250,000.

Second, Facebook pages are neither personal nor private - they are open to the world.  Once on Facebook, any comments you make can spread like a virus, and once out there, they can be difficult to retract. If the comments you make have a connection to your business or someone else's business they will likely be viewed in Australia as statements made 'in trade'. The same result is likely in New Zealand if a similar matter ever comes before the courts.   

Thirdly, behave on Facebook as you would in the physical world.  The same rules apply. As a rule of thumb, if it's not okay face-to-face, then it's not okay on Facebook.

An edited version of this article appeared in the June issue of Apparel Magazine.