We know neoprene as the material most commonly used in wetsuits and, more recently, clothing. But when Sydney duo Desley Maidment and Brigitte MacGowan developed their Escape bag, the first product for their State of Escape brand, they knew they were on to something special.
The thing is, within 12 months of their launch, so did countless copycats, who quickly ripped off the fabrication and sailing rope features, selling bags and pouches far below the $299 pricetag of the original.
Protecting what’s theirs … State of Escape’s Desley Maidment (left) and Brigitte MacGowan.
Maidment says that over the five-year life of the business, it has been subject to "blatant" copying, right down to the "black-and-white silicon branding placed in the same position on the bag with their brand name substituted".
"Passing off and attempting to deceive and confuse consumers is part of their strategy," she says.
One of the key differences between State of Escape's bags and the imitators, the women say, is their bags are made in Australia, while most knock-offs are made in bulk in China.
"We have removed over 20 copycat brands from the marketplace in Australia and continue to vigorously protect our brand all the way," Maidment says, adding that the company is currently in dispute with several labels. "Protection of your designs and brand requires a significant investment in legal, but based on our ongoing success in the local and international marketplace it is imperative."
Risk to the creative industries
The scourge of knock-offs has plagued the fashion industry since time immemorial. The most pervasive examples are the rows upon rows of designer fakes you see when on holidays in places such as Bali or Phuket. But rip-offs happen all the way from the top end of town to inside some of Australia's more "cottage" industries, such as bespoke millinery.
Copying is rife in millinery, too … Viktoria Novak.Credit:Melissa Singer
In 2016, a group of Melbourne milliners spoke out, at the risk of legal action and racing-industry alienation, against rife copying of their work by wholesalers who produce thousands of replicas of their work from as little as an Instagram picture.
Sydney-based milliner Viktoria Novak has pursued companies including Morgan & Taylor and Target over claims they copied her handmade pieces, which sell for several hundreds of dollars.
She says copying remains an issue in the millinery sub-sector. "Sadly the majority of small businesses and solo designers do not have the financial backing to support their case, nor do they have the emotional strength to combat the distress it can cause," Novak says. "As an artist myself, I would love to see more [legal] support so we can all thrive in a tough industry. Education is key as we run the risk of making all our creatives extinct."
While the number of cases of intellectual property theft in Australian fashion is relatively minute, there have been some high-profile examples in the past decade. In 2014, the Federal Court awarded swimwear giant Seafolly more than $250,000 after surfwear chain City Beach copied three of its designs.
But Seafolly has also been on the receiving end of claims it copied the work of Gold Coast designer Leah Madden, of White Sands. While Seafolly won the first round of the court battle, which began in 2010, in 2014 a court ordered the company to pay Madden $40,000 in damages after it issued a series of malicious press releases against her.
A spokeswoman for Seafolly said its legal team is constantly monitoring for copycats and takes action on a case-by-case basis.
The trouble with the law
Still, for every successful claim of copying, there are plenty of designers who don't have the time, money or will to fight, says Anita Brown, a Melbourne-based lawyer with Phillips Ormonde and Fitzpatrick. "Designers need to think about … taking action [as it] can be expensive, and by the same token if you are going to imitate someone else’s product and you get it wrong, you are potentially up for damages," she says.
When it comes to protecting their work, designers have several options, including registering a trademark for their brand or a distinctive shape, such as the famous Hermes Birkin bag, or pocket stitching on Levi's jeans. Other options include copyright (mainly for sketches, photos and patterns), and design registration, for the visual appearance of a product.
Swimwear giant Seafolly has been on both sides of copying claims.
[Fashion] deserves protection as much as the literary industry or the movie industry.
"If [designers] want to try to seek design protection, which gives you the right to take legal action against a person creating a similar design, you have to seek the registration before you disclose [the design]," Brown says.
She said a common misconception is that changing a product by as little as 10 per cent clears the maker of any potential claims of copying. "Where the line [on copying] falls is difficult to place," she says. "More copying is happening because it’s so much easier to take images from the internet."
Copying may be more prevalent but the "cumbersome" legal system creates too many hurdles for most designers to pursue a claim, says Dave Giles-Kaye, chief executive of the Australian Fashion Council. "It rarely gets pursued to any great length and if [smaller designers] are pursuing a company with deep pockets it’s often hard [to succeed]."
This leaves smaller brands to resort to using social media or their own channels to name and shame copycats, which has been dubbed the "Diet Prada effect" after the high-profile Instagram account that polices copycats, primarily in the luxury market.
"A lot of the smaller labels don’t have the confidence to [call it out], which is a shame, but it’s really the only thing they can do," said Giles-Kaye.
Looking for a better way
The council has collaborated with researchers at Bond University, who are trying to find better systems of design protection overseas that may be tested with Australian law-makers.
Professor William Van Caenegem, from Bond's Faculty of Law, says a stigma about fashion being "not terribly serious" may have hindered progress in advancing legal protections in the field in Australia. "In France, it is easier to get a remedy; they are more disposed to copyright owners than seems to be the case here," he says. "Partly that’s due to structural reasons and that litigation is very expensive here. They also seem to be more conscious of the creative value of fashion. It deserves protection as much as the literary industry or the movie industry."
He says legislators need to strike a balance between creative expression and copying, between inspiration and imitation. "A certain amount of inspiration and following trends is normal in fashion, so you can't have a hammer coming down on people, but where there is systematic copying … an effective and efficient market should do better than what we are doing."
Minister for Industry, Science and Technology Karen Andrews says the federal government is "listening to calls for improvement and modernisation of the Australian system".
"IP Australia is undertaking a review of the designs system, in consultation with industry stakeholders, relating to the needs of Aussie designers and other users of the system,” Andrews says.
As State of Escape expands its international market, including a massive cult following in Japan and among celebrities including Olivia Palermo, designers Maidment and MacGowan say they need to remain ever vigilant in their fight to protect their brand. "Our customer values what they are buying in to," says MacGowan. "They believe in supporting originality. It really irks them when they see the knock-offs.
"These [imitators] cannot create they can only ever copy. I can continue to create. Copying is a much harder way of running a business."
Adds Maidment: "Some people say [being copied is] flattering … I understand it on some level. [But] when you start a business and have something so unique to have people, particularly in Australia, copying – it’s opportunistic.
"This [bag] is our signature product and we will wholeheartedly protect what we know we created."
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