In the recent judgment State of Escape Accessories Pty Limited v Schwartz  FCA 1606, Justice Davies of the Federal Court of Australia found a fashionable neoprene tote bag was not a “work of artistic craftsmanship” and therefore not an “artistic work” for the purposes of the Copyright Act 1968 (Cth) (the Act). Since the Court found that copyright did not subsist in the State of Escape bag (the Escape Bag), there was no finding of copyright infringement.Read More
On 19 November 2020, the Intellectual Property Enterprise Court (IPEC) in the UK handed down its judgment in the case of Freddy SPA v Hugz Clothing Ltd & Ors  EWHC 3032, which ran for an unusually long time for the IPEC (three days).
The decision was a rare occurrence of a passing off claim, together with other IP causes of action, succeeding in the get-up of a functional item, being “bum enhancing jeans”. Ordinarily, such cases, particularly with respect to fashion items, fail as the get-up is seen as merely design elements or ornamental, or the circumstances of the use lead to a conclusion that other trade marks (e.g. brand names and logos) dominate consumer perception.
This case could embolden brand owners in relation to enforcement of the look and feel of their clothing as it creates the possibility of confusion ‘post-sale’ in addition to the point of sale.Read More
Louis Vuitton received a favorable decision from the EU General Court (General Court) in June 2020 which may assist brand owners seeking IP protection of their decorative patterns. The decision confirms the distinctive character an EU trade mark must possess in order to benefit from protection throughout the EU as well as highlighting how patterns may be protected through registration as a trade mark rather than under other forms of IP protection such as copyright or design protection. However, the decision also reaffirmed the EU’s strict approach to assessing the unitary character of EU trade marks, which potentially sets a high bar for applicants to clear.Read More
The COVID-19 pandemic has driven a new reality for both fashion brands and the consumers they serve, with the changes being sharp and vast, and many of which will be permanent, such as the shift to online. Fashion brands have acutely felt the disruption to supply chains, retail stores, and delivery networks.Read More
Banksy’s trade mark for one of his most famous artistic designs has been declared invalid by the European Union Intellectual Property Office (the EUIPO) on the grounds that it was filed in bad faith. The EUIPO finding him having engaged in “inconsistent with honest practices” in his attempt to protect his trade mark. A full copy of the decision can be found here.
The EUIPO said Banksy was attempting to use trade mark law to protect his artwork from being used commercially by third-parties because he couldn’t copyright it and maintain his anonymity. This decision highlights that the court will take a dim view of anyone – even famous artists – attempting to find a loophole in the law.Read More
The Chinese government’s decision to close factories in January 2020 was completely unexpected and took most companies by surprise. China, after all, was considered “the factory of the world,” and the widespread business closures created a lot of confusion and anxiety for companies without alternative supply chains. With the rapid spread (and fear) of COVID-19 globally, business and public life have been totally disrupted.
The COVID-19 pandemic has changed the way that we live, work, communicate, and socialise. Borders have closed, along with factories and nonessential businesses; people are working from home while many others are on forced leave or have lost their jobs.Read More
Fashion mogul and former Spice Girl, Victoria Beckham lost the first round of a trademark battle with Australian skincare brand, VB Skinlab, in relation to two of VB Skinlab’s pending Australian trademark applications for the “VB” brand filed in March 2018. A full copy of the decision can be found here.Read More