Jeanswest denies copying Dutch design

An ad for the Jeanswest G-Star Raw denim. Photo / Supplied

A New Zealand jeans retailer says it did not copy a Dutch clothing company's jean design, as the style was no longer original.

G-Star Raw, and one of its distributors, allege Australian-owned Jeanswest Corporation (New Zealand) sold a style of jeans in New Zealand that was a copy, or substantial copy, of one of its designs.

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

Last year a High Court judge agreed, and found Jeanswest New Zealand to have infringed the copyright of G-Star Raw.

Although Jeanswest New Zealand was restrained from distributing or selling copies of the Elwood design in the country, they were ordered to pay just $325 in damages on the ground that the decision to sell the goods in New Zealand was made by senior management of Jeanswest Australia, and did not infringe Australian copyright laws, just those in New Zealand.

Both parties appeared at the Court of Appeal today after Jeanswest New Zealand appealed against this earlier decision.

G-Star Raw is also asking for Jeanswest to pay more in special damages.

At today's hearing, counsel for Jeanswest New Zealand Clive Elliot QC told Justices Ellen France and Tony Randerson that the "essential character" of both pairs of jeans was different.

G-Star Raw has previously stated that its Elwood style 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.

Mr Elliot argued that the five main features of the Elwood jeans, which were designed in 1995, had appeared together or separately on other designs from several other brands before the "Dean Biker Slim" was created in 2009.

"The level of originality has reduced because everyone was using those features in different combinations."

Mr Elliot also said his clients, Jeanswest New Zealand, did not have any knowledge that they were importing infringing copies of the jeans.

He said the jeans were made lawfully overseas, then transferred to New Zealand from Hong Kong on instruction from the Jeanswest Corporation in Australia.

He argued because of this there was no infringement on copyright laws in New Zealand as it was all occurring offshore.

"These goods were perfectly OK until they were sent to New Zealand ... And as they crossed he border they changed from a perfectly good product to a product that infringed," said Mr Elliot.

"It's about the ethics and culture of the company... And they had a genuine belief what they were making was fine."

The hearing, at the Court of Appeal in Wellington, continues.