Jeanswest breached G-Star's copyright

G-Star Raw alleged Jeanswest sold a style of jeans that was a copy, or substantial copy, of one of its designs.

A New Zealand jeans retailer has infringed the copyright of a Dutch clothing company but has been ordered by a High Court judge to only pay $325 in damages.

Amsterdam's G-Star Raw, and one of its distributors, went to court last month alleging Australian-owned Jeanswest Corporation (New Zealand) sold a style of jeans in this country that was a copy, or substantial copy, of one of its designs.

G-Star argued Jeanswest NZ sold a style of jeans called "Dean Biker Slim" that contained features of its "Elwood" jean design.

It said its Elwood style, first developed in 1995, had "distinct design features" including oval-shaped knee pads, horizontal stitching running across the back of each knee, a straight line of double stitching coming from the hip to the crotch diagonally across the front of the thigh of each leg, a saddle pad of the back of the jeans and heel guards at the back of each leg.

G-Star's claim alleged that, with the exception of the saddle pad, the "Dean Biker Slim" jeans contained these features.

While the Jeanswest product sold for $34.99, G-Star said its Elwood jeans were priced between $260 and $310.

G-Star wanted a declaration Jeanswest infringed its copyright, orders that it will be restrained from reproducing the Elwood design and for the defendant to hand over any of the infringing garments. It also wanted an inquiry into damages.

In his decision released publicly this morning, Justice Paul Heath said he was satisfied that a declaration of copyright infringement should be made and that Jeanswest NZ should be restrained from distributing or selling copies of the Elwood design.

But when it came to the question of damages, Justice Heath said they were "minimal" and ordered Jeanswest NZ to pay $325.

"In the context of a proceeding of this type, brought primarily to protect the reputation of G-Star and the interests of its distributor in Australasia, no more than a nominal order for damages can be justified," he said

Only 62 Dean Biker Slim jeans were sold in New Zealand and the decision to place the goods into this country was made by the senior management of Jeanswest Australia.
Justice Heath said he was told that copying of this type would not infringe Australian copyright laws.

"That being so, the attention of those in the design and production team [in Australia] responsible for ensuring no breach of copyright occurs will not have been drawn to the different legal position in New Zealand," the judge said.

While G-Star's lawyer urged the judge to conclude that infringement occurred because Jeanswest Australia was deliberately "shutting its eyes" to the consequences under New Zealand law, Justice Heath said this would be "purely speculative".

"There being two inferences available, I draw the one most favourable to Jeanswest NZ, namely that the infringement occurred through ignorance of New Zealand law - though that is no excuse. In those circumstances, I am not prepared to make an award of aggravating or additional damages."

Jeanswest NZ was also ordered to pay G-Star's costs, albeit these were to be off-set against other costs awards already made in this case.