Today, Intellectual Property Lawyer Sharon Givoni (our speaker at the most recent CWC) shares in more detail one of the cases she referenced in her presentation, as well as offers some tips for using social media as a creative business owner. She has written another excellent article about using your own name as a business name for Full Members to access. Thanks, Sharon!

By Sharon Givoni*

In the creative field people are always getting inspiration from other sources.

But what happens when you think someone has taken a little too much inspiration from you and is actually copying you? What can you do?

Well, one thing that you probably should not do is talk about it online on Facebook or other social media outlets, as a recent case between two fashion designers has demonstrated.

What happened in the case?

Leah Madden owns a swimwear brand some of you might be familiar with called White Sands.

She discovered in the marketplace what she thought to be a “rip off” of some items in her 2009 “Shipwrecked” swimwear collection.

Thinking that well-known swimwear company Seafolly had copied from her, she posted an album on her Facebook page entitled “The most sincere form of flattery?”.

She then posted several side-by-side comparison shots of models wearing White Sands and Seafolly swimwear, and below each image Madden wrote descriptions such as: “White Sands 2009 / Seafolly 2010”.

She also added comments such as:

• “Seriously, almost an entire line-line ripoff of my Shipwrecked collection.”
• “I know, the buyer from ‘sunburn’ (who, as it turns out, works for seafolly) Came to my suite at RAFW and photographed every one of these styles.”
• “Ripping off is always going to happen, but sending in a dummy ‘buyer’ to get photos is super sneaky!”

What happened next?

The Facebook statements were read by many people, and received quite the response. People said:

“Nasty! Shame on 'em! Won't be buying Seafolly. WHITESANDS all the way. X”

“seafolly own everything! sunburn, miraclesuit and gottex and they used to own jets but sold it recently! and unfortunately they do rip off everyone, they have copied a design 2 chillies has been doing for years! a little frilly triangle, its so bad!”

“Disgusting! How people look at themselves in the mirror is beyond me.”

Media Attention – hungry for more…

Madden then sent emails to media outlets also, using the same words “The most sincere form of flattery?” in the subject line of each email.

Responses from readers included:

“This sort of thing is happening ALL the time. Large corporations no longer have ‘designers’ but ‘product developers’ that source indie designs, copy and mass produce them.”.

“Yeah right Seafolly – you really expect us to believe this garbage?...”

How did Seafolly respond?

In response, Seafolly circulated a press release of their own saying they DID NOT copy at all.

Even though White Sands said that they had never specifically accused Seafolly of plagiarism, the damage had been done by what she had said and Seafolly sued her for misleading and deceptive conduct and other things.

At court, even though Madden argued that she had only expressed an “opinion” – not a statement of fact – the judge disagreed.

Seafolly’s CEO said that:

“This day of internet, where things go viral, once things are released into the public space, no amount of logical reasoning actually matters… Once she put that up there, I was finished anyway… the damage had been done.”

No winners

Ultimately Seafolly succeeded in its arguments concerning misleading and deceptive conduct. White Sands was ordered by the court to pay Seafolly damages in the sum of $25,000 AND  Seafolly’s costs of the court application.

Did anyone win though? I would say no. The public airing of their 'catfight' led to both companies attracting some level of negative publicity.

Lessons to learn from this example

1. Think before you speak (or at least think before you type, especially when it comes to social media).
2. Just because you do not expressly say something, if you imply it, that can be just as bad, legally speaking.
3. Always get legal advice!

DISCLAIMER: This article is of a general nature only and must not be relied upon as a substitute for tailored legal advice.

----

CWC Full Members can log in and access another article by Sharon entitled 'Protecting your own name as a trademark' over here.

*Sharon Givoni is an intellectual property lawyer. She assists many creative businesses Australia-wide including members of Creative Women’s Circle. She can be contacted by email (sharon@iplegal.com.au) and her website is located at www.sharongivoni.com.au. She has a reputation being very approachable and for giving legal advice using plain English. Call her on 0410 557 907.