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