17 February 2015

Copyright: Jeanswest v. G-Star

Retailer Jeanswest was punished by the Court of Appeal with a further penalty of $50,000 for trying to hide the fact that it had blatantly copied G-Star’s iconic biker jean.
G-Star is proud of its biker jean, having sold over 13 million pieces since launching the product in 1996 at the Cologne clothes fair.  The jean is modelled on the distinctive creased look occurring when wet trousers are moulded to a motorcyclist’s legs.
G-Star sued in 2013, alleging breach of copyright by Jeanswest in selling similarly styled jeans through its chain of 27 outlets in New Zealand.   The High Court ruled there had been a breach of copyright.  Damages of $325 only were awarded; the profit margin on 62 pairs sold.
G-Star appealed the level of damages awarded.  The Court of Appeal ordered Jeanswest to pay a further $50,000 damages.  These were exemplary damages to punish Jeanswest for its behaviour.  The court said there was blatant copying by Jeanswest amounting to a flagrant infringement of G-Star’s copyright in the style of jean. 
Fashion houses get irate over copying.  G-Star emphasised that knock-off artists do not bear the design costs.  They latch on to a hot-selling style and steal it.  The copier gains an incalculable benefit at little cost while the uniqueness of the copied brand is diminished.
The Court of Appeal was also very critical of the way Jeanswest acted at the High Court trial.  During the pre-trial discovery process, Jeanswest was very late in handing over a copy of the sample order sent to China for the manufacture of the disputed jeans.  This sample order was a critical document in determining whether there had been copying.  Jeanswest manipulated the court hearing date by stating that a material witness was pregnant and would not be available at a later date.  She was not a material witness.  She didn’t work for Jeanswest at the time the disputed jean went into production.  In any event, Jeanswest did not call her as a witness in the High Court.  The court also highlighted the glaring inconsistency between Jeanswest’s persistent denial of copying on the one hand, while on the other hand failing to call witnesses who could be in a position to provide proof of this denial.
Jeanswest v. G-Star – Court of Appeal (17.02.15)

15.007