The
ferocity with which G-Star protects its Biker jean design is evidenced by the
costs incurred when suing Jeanswest Corporation in New Zealand. After a court hearing lasting eight days,
G-Star was awarded damages of $325.
The High Court was
told G-Star’s classic Elwood Biker jean is an iconic brand, combining fashion
with the functionality of motocross trousers.
Inspired by the shape created when wet trousers mould to motorcylists’
legs, its French creator intended the design to be named after the famous
racer, Mike Hailwood. When spoken in French, Hailwood corrupted to
Elwood.
G-Star alleged
Jeanswest was ripping off its design of the 2006 Elwood Anniversary jean by
selling similar styled jeans in New Zealand.
Evidence was given
that G-Star has about five per cent of the fashion jean market in New Zealand,
selling in the $180 to $570 price range.
Jeanswest’s 27 outlets
in New Zealand are controlled by management in Australia. Evidence was given that a very small production
run of the disputed jeans was sent to New Zealand: only 63 pairs of jeans, of
which 62 were sold and one went missing – probably shoplifted.
After a G-Star
representative purchased one pair from a Christchurch Jeanswest store, lawyers
became involved. A “cease and desist”
letter was sent to Jeanswest together with a demand that Jeanswest acknowledge
that its product was in breach of copyright as a copy of G-Star’s 2006 Elwood
Anniversary jean. Jeanswest agreed to
stop selling the disputed line of jeans, but denied it was a copy. G-Star sued for breach of copyright.
Copyright exists in design
drawings for fashion clothing.
Replicating the fashion item is a breach of copyright in the original
design drawings.
Justice Heath ruled
that the Jeanswest product did breach G-Star’s copyright and that Jeanswest
(New Zealand) was liable as a secondary infringer: the New Zealand operation
did not manufacture the product but was liable for selling in New Zealand a
product in breach of copyright.
Since such a small
number of jeans were sold, nominal damages only of $325 were awarded.
G-Star
v. Jeanswest – High Court (15.10.13)
13.031