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Trans-Tasman Warning from Jeans Wars

  • 3 March 2015

The Court of Appeal recently upheld a decision finding that copyright in the design of a pair of jeans had been infringed.  The decision raises a number of interesting legal points, one of which serves as a warning to those selling in the trans-Tasman market.

His Honour Wild J paints the picture in the opening paragraph:

On a wet day in August 1995 Monsieur Morisset was sitting in a café in the south of France.  M. Morisset is a French clothes designer.  Out the window he noticed a motorcyclist, his trousers sodden by the rain.  Inspired by the way the rain had stretched out the motorcyclist’s trousers over his knees, with the trousers “crinkled and crumpled in the hollow of the knee”, M. Morisset sat at his café table for about half an hour sketching out a design for a pair of biker jeans.[1]

M. Morisset worked for G-Star, and his biker jeans design was extremely successful. It was so successful that JeansWest in Australia decided to test the market with a very similar product.

Jeanswest copied the G-Star design.  They did so in a way that was perfectly legal under the relevant Australian law, and distributed 311 pairs of jeans to their Australian stores, to test the market.

They also sent 63 pairs of the jeans to their New Zealand subsidiary, to test the market here.  This was their costly mistake.

It seems Jeanswest Australia had assumed New Zealand copyright law was the same as Australian law.  They were wrong.

When G-Star brought an action for copyright infringement in New Zealand, the Court of Appeal upheld the High Court decision finding that infringement had taken place.  Ignorance of the law is no excuse.

In deciding what the appropriate remedies for the infringement should be, the Court of Appeal considered that:

  • Jeanswest lacked an effective system for establishing whether this importation breached New Zealand copyright law.
  • It should have been a simple matter to obtain the required legal advice.[2]

As a result, the Court of Appeal added on to the High Court order a requirement for Jeanswest to pay $50,000 in additional damages, plus 4 ½ years of interest, and costs in the appeal.  This is on top of what they had paid their own solicitors, QC and second counsel to prepare and argue the case.

The amount of profit made on the 63 pairs of jeans was $325 (which also had to be paid to G-Star).

Take home points:

  • Copyright law in New Zealand is different to copyright law in Australia.
  • Before you enter the market across the Tasman, make sure you obtain legal advice.
  • Ignorance of the law is no excuse – the cost of obtaining legal advice may be significantly less than the cost of failing to do so.

[1] JEANSWEST CORPORATION (NEW ZEALAND) LIMITED v G-STAR RAW C.V. CA764/2013 [2015]

NZCA 14 [17 February 2015], paragraph [1]

[2] Ibid, paragraph [129]