The Fashion and textile industries involve substantial creative output and most traders market the originality of their designs as their selling point.  However, copying is common in these industries and to a certain extent is tolerated culturally.  This may in part reflect that fashion relies a great deal on inspiration, reinvention and trends.

Copying is also no doubt inevitable, due to some of the legal and associated financial restraints.  Not all fashion and textile designs are sufficiently novel to qualify for the appropriate form of intellectual property protection, namely registered design protection.  Further, as a practical matter, given that fashion and textile designers are often prolific in their output, it would be prohibitive to obtain design registrations for all designs created.  Also a design may not emerge as a blockbuster and worthy of registration, until it actually hits the market.

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Copyright and Design Protection for Fashion

Unless a design has already been filed, it can be too late to file for design protection after the design has been made public (at least in Australia and New Zealand – however there is a 12 month grace period in other jurisdictions like the US and Europe).  Consequently, apart from trade mark infringement (typically a claim involving brand names or other brand elements, in relation to counterfeit goods), copyright infringement in print designs, are the most common of fashion / textile intellectual property claims which are enforced through the courts.  Unlike design or patent protection, this right automatically subsists on creation of the work.

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What is a Copyright Troll?

Copyright claims in relation to textile print designs are becoming more common.  Regrettably, many of these claims are not traders seeking to curb the copycats.  Rather, the trend signals the advent of the copyright troll as an increasingly popular and lucrative business model.

The concept of trolls is not new in relation to intellectual property, with patent trolling or patent hoarding as the most well known species of intellectual property troll.

A patent troll buys up patents cheaply or files patents strategically.  They use these patent rights as legal weapons and their primary form of business is initiating litigation (or threatening litigation) and hardball legal tactics.  Patent trolls often do not produce any goods or supply services based on the relevant patents.  They exist to own and litigate patent rights.

The business model operates on the basis that many recipients of a patent claim, will make the commercial decision to pay the patent owner a licensing fee rather than fund a patent infringement defence including a challenge to the validity of the patent.

Copyright claims are often typically much less expensive to litigate than a patent claim.  However, the troll has also emerged as a troublesome beast in the area of copyright, especially in relation to textile fabric design.

Like the patent troll, a copyright troll brings or threatens questionable claims against fashion or textile traders over purported copyrights in fabric patterns.

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The copyright troll typically operates as follows:

• The copyright troll creates, acquires or registers a series of designs as copyright works (copyright can be registered in the US), especially in relation to on-trend patterns.
• Image recognition software detects designs in the marketplace which are arguably similar to the troll's copyright work.  In trend driven industries it is inevitable that other traders will be producing similar fabric designs.
• The troll then initiates a copyright infringement claim (or threatens to do so), with a view to obtaining a license fee or settlement payment.  Even though copyright claims may be less technical and therefore less expensive than patent litigation they can still be expensive to defend.  Consequently, it may be faster and easier for a company to settle.

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Some US traders have issued hundreds of copyright claims.  Although this troll activity is primarily based in the US, fabric designs are sourced and supplied globally, such that and any trader involved in the production and sales process (for example, fabric designers, fashion labels, textile labels, textile manufacturers and retailers) may be targeted.

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How Can I Defend Against Trolls?

In theory, copyright infringement is often a relative simple claim, in that copyright infringement requires copying.  If a design is truly original and designed without reference to the earlier design, it will not infringe copyright in a design even if near identical.  Therefore, commissioning designs from a reputable designer or design house, should reduce the risk of challenge and improve the prospects in answering any claim.

Further, it is critical to ensure that there is ongoing contact with the original designer, such that they can swiftly assist in establishing the precise history regarding creation of the design and prove that the design is original.  This is generally achieved through ongoing commercial relationships and contractual terms requiring the designer's assistance.

Of course, the business model of the troll is to make a spurious claim.  Therefore, sometimes a pre-emptive action may be required to fend off the troll and minimise business disruption.

Any commercial contracts regarding the fabric design require critical analysis, especially any indemnities relating to legal costs in the event of an infringement claim.

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