Protecting Designer Clothing from Cheap Imitations

The Israel clothing designer Tally Dadon-Yifrach sells her designs under the label Vision.  The clothing was available through various outlets, including Griffin Fashion in Azor and Givatayim, in Forty-Second in Tel Aviv and elsewhere. Her clothing is also worn by singer Sarit Hadad, and she’s had joint ventures with Uri Geller, but these nuggets of information in the ruling are somewhat irrelevant as the clothing that was the basis of this ruling, is not related to those designs.

Ms Dadon-Yifrach was rather put out to discover a dress and some Bermuda shorts that were virtually identical to her designs sold under the label Odevo in these outlets and others for rather less than the price tag on her clothing.

The designer sued the various shop owners and people behind the Odevo label for passing off under the trade laws, unjust enrichment, inequitable behavior under the Law of Contract, false labelling and unacceptable interference in trade practices under the trade laws, misleading under the Laws for protecting consumers, and so on.  With a mix of statutory damages and estimated loss of sales, the designer sued for NIS 440,000.

The defence offered by the defendants was that the dress in question was itself a copy of a Lee Cooper design, and that the Bermuda shorts and other items were generic to the fashion industry, and similar items were available from a number of designers and also from general retail outlets for the previous couple of seasons.

Judge Esther Stammer  of the Central District Court acknowledged that the fashion industry did not generally file designs and that registration generally took longer than fashions to change, but nevertheless ruled that in the absence of a design registration there was no copyright in clothing.  She dismissed the credibility of some of the key witnesses for the defence and accepted testimony from private investigators that salespeople offered the cheap look-alikes as substitutes. She also differentiated between clothing sharing a common inspiration and close copies and accepted that the Odevo garments were cheap copies of the Vision garments. Nevertheless, since they were marketed under a different label she dismissed the charges of Passing Off. 

As to Unjust Enrichment, Judge Stammer accepted that there were grounds for ruling unjust enrichment in this case, but ruled that the complainant had failed to prove that she had invested heavily in developing the designs and the other side had benefitted financially, since she had not invested sufficiently in assembling evidence showing sales revenue and the like.

The case was dismissed and both sides ordered to bear their own costs.

The case: T.A. 9278-08-08 Dadon Yifrach vs. A. T. Snap LTD and Others.   

COMMENT

This case is interesting as Judge Stammer seems to follow Judge Grosskopf’s criticism of A.Sh.I.R. regarding the ‘additional element’ required for the tort.  Should clothing design be protected without registration? This is a worldwide issue. I suspect that one’s viewpoint on the issue is probably a reflection of one’s income and fashion consciousness as much as ideology.

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