In the world of fashion, where creativity meets commerce, designers are learning that the most important accessory isn’t a handbag or stiletto – it is intellectual property protection.
The Fabric of Fashion Law
At its core, fashion law in Australia is a patchwork of various intellectual property rights, each designed to protect different aspects of a designer’s creative output. Legally enforceable rights are essential for protecting designers’ innovation and encouraging artistic expression in fashion and design. In Australia there are multiple avenues for designers to protect their works through. These being:
Trade marks
Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark as “a sign used, or intended to be used, to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person”. Notably, under section 41(1) the trade mark must be capable of distinguishing the applicant’s goods or services in respect of which the trade mark is sought to be registered. In the design world, trade marks serve to set one creator’s work apart from another’s. Registering a trade mark in this industry grants its owner exclusive legal rights to use that distinctive element for the goods it covers.
One standout example is Christian Louboutin who trade marked the signature red of their shoes (Pantone 18.1663TP). Louboutin secured this trade mark by providing compelling market evidence showing that customer’s instantly associate the red soles with their brand – proving the powerful connection between design and consumer recognition.
Importantly, a trade mark registration lasts for 10 years from its filing date and can be renewed indefinitely. Further, an Australian trade mark provides protection only in Australia. If one wishes to attain trade mark protection overseas, they may file a single international application to World Intellectual Property Organisation or directly to each foreign country.
Copyright
Copyright is a bundle of rights governed by the Copyright Act 1968 (Cth) which protects subject matter, like artistic works/designs, from being reproduced, published, or communicated to the public without the owner’s permission. In Australia this type of protection is automatic and for artistic works the protection lasts for the life of the owner, plus 70 years. Artistic works can include sketches, patterns, paintings and works of artistic craftmanship.
For example, the pattern used on a skirt may be subject to copyright protection and using the pattern for a top may be an infringement of copyright to reproduce it. In 2014 Seafolly successfully sued City Beach for copyright infringement in relation to several fabric designs used in their bikini’s. Seafolly was awarded $250,333.06 in damages as evidence presented in court showed striking similarities between Seafolly’s original fabric designs and those used by City Beach designers (Seafolly Pty Limited v Fewstone Pty Ltd [2014] FCA 321).
Significantly, in Australia copyright protection is lost once a three-dimensional design embodying the design is mass-produced, or a design right is filed.
Patents
Patents in Australia are protected under the Patents Act 1990 (Cth) and provide the owner with the exclusive right to sell the design for a set period of time. Patents give protection to new products, methods or processes but they do not apply to artistic creations. As such patents play a limited yet important role in design by protecting functional innovation but not aesthetic design.
Notably, Australian patents are only applicable in Australia. To seek patent protection overseas one must either file an international application through the Patent Cooperation Treaty application process or directly to the foreign countries.
Design Rights
If an aspect or the whole of a design is unique it can be registered under the Design Acts 2003 (Cth), thereby giving the designer protection for the visual appearance of the design. In Australia designers must undertake a two-step process to secure design right protection – registration and certification.
For a registration to be certified it must be new and distinctive compared to other designs in the world. When applying for certification, visual representations of the design are required to be produced.
It is important to note that registration initially protects designs for 5 years from the date the application was filed. After that period, you can renew the design registration for a further year. If registration is not renewed it will cease and will pass into the public domain where others are free to use it. Additionally, Australian design rights do not give protection outside of Australia. If you wish for protection in another country, then within 6 months of filing an Australian application an application can be made under the International Convention for the Protection of Industrial Property.
The Catwalk of Compliance
Not complying with intellectual property laws in the fashion industry can have serious consequences. Here, designers risk facing lawsuits for copyright infringement, trade mark violations, or design infringement. This can result in costly and protracted legal matters and potential damages. On the other hand, a lack of intellectual property protection may cause designers to lose a unique market position as competitors can freely copy their designs. Additionally, being publicly accused of copying or infringing on another’s design can place a designer into significant disrepute in the fashion industry.
Recently, in Killer Queen, LLC v Taylor [2024] FCAFC 149, the Full Court of the Federal Court held that local loungewear designer ‘Katie Perry’s’ trade mark was not valid as at the time of its registration in 2008, Katy Perry was already a “nationally and internationally famous pop star”. Because of this the trade mark was likely to deceive or cause confusion and thus amounted to trade mark infringement.
The Future of Fashion IP
As the industry evolves, so too does the legal landscape. One of the key developments reshaping the landscape is the amendment to section 17(1) of the Designs Act 2023 (Cth), which came into effect on 30 August 2021. This change introduced a 12-month grace period for filing design registration applications, allowing designers to test their creations in the market before committing to registration. This flexibility is a game-changer, especially for innovators looking to gauge public interest and commercial viability without prematurely locking in designs.
Adding to the transformation is the introduction of the Australian Fashion™ certification, a pioneering initiative aimed at revitalizing Australia’s local fashion economy. This new trade mark sets rigorous standards for fashion brands, requiring them to demonstrate their contribution to local jobs, economic growth, and sustainability. To qualify, brands must meet specific criteria: products must be Australian made and owned, employ a majority Australian workforce, and ensure their tax domicile is within the country. By encouraging designers to bring offshore manufacturing back home, the Australian Fashion™ certification serves as a badge of credibility and pride, fostering trust with consumers and boosting the local industry’s global standing.
These developments highlight the growing intersection of creativity and commerce in Australia’s design and fashion sectors. Designers now face an increasingly nuanced market, where success hinges on innovation, sustainability, and strategic planning.
In this landscape, your intellectual property strategy is more than just a protective measure—it’s a cornerstone of business growth. Seeking professional legal advice ensures your designs and business are protected, enabling designers to focus on their creativity.
As the industry evolves, staying ahead of these legal and market changes could mean the difference between blending in or standing out in the competitive world of design.
ABOUT THE AUTHOR
Isabella Tziolis assists as a paralegal in commercial, defamation, employment and general matters and is committed to supporting BlackBay Lawyers mission of delivering exceptional legal services. Her work focuses on assisting in providing comprehensive legal support, conducting extensive research, and offering strategic guidance to clients.
Isabella is currently studying a Bachelor of Laws and a Bachelor of Arts, majoring in Politics and International Relations at the University of New South Wales. Her academic and professional experience has fostered her high attention to detail and strong analytical skills which allows her to efficiently handle high-pressure situations and contribute to effective legal strategies.
