Lara Bingle has landed in cold water again relating to pictures of her in a swimsuit. This time, the controversy surrounds her new line of Bingle swimsuits released through retail giant Cotton On Body.

Bingle, and in fact the whole of Australia, is being publicly attacked by US designer Lisa Marie Fernandez.  Fernandez claims Bingle’s one piece neoprene (wet suit material) swimsuit represents Australia’s shameless copy of Fernandez’s designs.

Yes, when looking at the 2 swimsuits side by side below, we can see how they might be similar.  Both are black onepieces made out of neoprene with a zip detail at the front. The main discrepancy though, is the $370 price tag difference, making Bingle’s cheaper version more accessible to Aussie beach babes.

Being the first to design a swimwear range out of neoprene back in 2009, Fernandez claims she therefore has exclusive rights over the entire swimwear-made-from-neoprene- market. But does Fernandez have a case in Australia?

The Australian Copyright Act only protects 2D images; therefore Fernandez would not be able to rely on copyright infringement claims.  The Designs Act will protect the visual appearance of any registered designs that are new and distinctive. Accordingly, Fernandez’s designs must be registered under the Designs Act to guarantee protection. Even then, the Designs Act does not generally protect the material or feel of a product.

Unless Fernandez’s designs are registered in Australia, her strongest claim against Bingle, Cotton On Body, and other Aussie brands NPL and Triangl, who she is also targeting, may be based on passing off. Hopefully Bingle gets out of this bingle unscathed.