The Court of Appeal has ordered Jeanswest Australia to pay additional damages, but stopped short of imposing a permanent ban, for infringing Dutch clothing firm G-Star Raw’s copyright on biker jeans, said to be inspired by how the rain had stretched out a motorcyclist’s trousers over his knees.
In a decision out today, Justices Ellen France, Tony Randerson, and John Wild allowed Jeanswest’s appeal to the extent it set aside an earlier High Court judge granting a permanent injunction on its Dean Biker slim jean, but also found the company liable for primary infringement of G-Star’s copyright and ordered $50,000 additional damages to the Dutch company.
“The net result is a substantial success for G-Star,” the written judgement by the appeal court judges said.
The Dutch firm and one of its distributors alleged Jeanswest sold a style of biker pants that was a copy of a design of biker jeans it has a copyright for.
According to G-Star’s claim a French designer working for it came up with the design for the Elwood jeans in 1995, and it has since become a signature product selling millions worldwide.
In the High Court decision in October 2013, Justice Paul Heath found Jeanswest liable for secondary rather than primary infringement of G-Star’s copyright, ordered an injunction preventing further infringement, and awarded G-Star damages of $325, the amount its competitor had made selling 62 of the 63 Dean Biker jeans it had imported into New Zealand.
The Jeanswest product sold for $34.99 compared to the Elwood jeans priced between $260 and $310.
Neither party was happy with the outcome with Jeanswest appealing the decision and G-Star cross-appealing.
Jeanswest Australia launched the Dean Biker jean simultaneously in New Zealand and Australia in January 2010 with a limited run and they were on sale for nearly two years in this country before G-Star took action.
The Court of Appeal judges upheld Justice Heath’s finding that the Jeanswest design copied four of the five main features of the Elwood design, with the fifth deliberately left off.
Jeanswest NZ argued it wasn’t a primary infringement of the copyright because it had no hand in designing the Dean Biker jean, which was done in Australia. But the judges said that argument didn’t wash because the decision to sell the jeans here was made by Jeanswest Australia management on behalf of its New Zealand subsidiary.