Earlier this year, K&L Gates hosted its annual Fashion Law Breakfast in conjunction with the Virgin Australia Melbourne Fashion Festival. A fantastic panel of both fashion and legal experts divulged tips on inspiring creativity in the fashion industry and combating copyists.

Following trend forecasts and drawing inspiration from the catwalks overseas is nothing new or particularly sinister. However, there is a clear distinction between drawing inspiration and copying.

Fashion brands need to have a culture that sets clear expectations when it comes to drawing the line between inspiration and copying. Creating something new and innovative needs to be part of a fashion brand’s modus operandi. Junior designers with their fresh approach and cutting edge design skills should be encouraged to work on hero collection pieces. Realistic time pressures need to be placed on designers and brands need to have a clear and well vocalised strategy that explains how designers are to interact with and use reference pieces but still come up with something original and unique.

It is important that designers are encouraged to develop their garments and fabric prints through a creative process. Designers should keep drafts of their designs to show how their designs have been developed. They should also retain story boards in order to show their inspiration to come up with their final design. This evidence is important in order to prove a case of copying so that the design house can show that the designer has created a new original work that is different to the designs which were used as inspiration. Conversely, it is important for designers to keep their design creation documents as they are crucial to prove independent creation – a complete defence to a claim of copyright infringement. In most fashion cases where there has been copying and copyright infringement has been found, the designer in question has spent little time creating the work in question and has had reference to one prior work.

If you find that one of your designs has been copied, you can take action in many ways, from picking up the phone to discuss your concerns with the copyist, to engaging lawyers to send a letter of demand if you have a legal claim. At the end of the day, customers know what they want and generally know how to spot a cheaper copy product.