Stitch up: will our Laduma win case?

After news broke out early this week that top SA designer Laduma Ngxokolo, owner of MaXhosa by Laduma, is suing Spanish fashion outlet Zara for copying his designs, parliament's select committee on trade and international relations said it also wants the retailer to share the profits accumulated from the "copied" designs.

"It should not end there, Zara should share with Laduma Ngxokolo whatever benefit was accrued illegitimately. This is theft, nothing more, and it necessitates the protection of the small guy through stringent copyright legislation," said chairman of the select committee on trade and international relations Eddie Makue. Ngxokolo claims that patterns of Khanyisa Cardigan launched in March 2014 at the Mercedes-Benz Fashion Week were appropriated by Zara and reproduced as part of their sock range.

He further says his cardigan, where the sock design is stolen from, was seen on runways globally.

Copycat cases of designs in fashion world

Indie artist Tuesday Bassen also took on Zara, who copied her protected work. Their response was that her work was unattributable to her as it was too simplistic.

 Urban Outfitters were accused of stealing Chicago jewellery designer Stevie Koerner's pendant designs. When she looked into protecting her designs, she was legally advised that the shape of a state cannot be legally protected.

Gavin Rajah was accused of copying several times, including this dress (pictured). Chelsea Liu, an Asian-American designer from New York, also accused Rajah of stealing her designs, as did Cape Town designer Paul van Zyl, who said Rajah's "pebble dress" was plagiarised.

Balenciaga made a replica of a traditional Thai shopping bag. But their Thailand's Commerce Ministry's Intellectual Property Department ruled that the bag, although used in the country for decades, was not a copycat and that if one intends to copy, the material, pattern, shape and colour must be the same.

Gucci took on retail store Forever 21 over their use of stripes as used on a Gucci Jacket. Gucci claimed the grosgrain stripes were central to the brand's identity and won the battle.

On Friday, Zara's holding company Inditex announced a process to remove the items from stores and online had been activated. But it's a known fact that in the world of design, not every idea can be completely new. So is a legal battle worth the time and money?

Fashion lawyer Sumaiya De'Mar explains that law has dominion over every industry and fashion is no exception.

She says the dispute in question relates to intellectual property law.

"Copyright law in particular protects the original creative works of designers, artists, etc. Copyright arises automatically the moment an original work is recorded in material form. One then has the right of ownership to one's work and has protection against copying or selling one's work without permission."

She explains that fashion law has developed using a combination of several legal concepts, at the heart of which lies intellectual property (IP) law (this deals with copyright, trademarks, patents and design law). It also relates to tech (IT) law, social media law, ethics, business and contracts.

"Intellectual property is basically the product of the intellect, which are the
assets of the mind. The law recognises and protects these assets and it's important for designers to safeguard their intellectual property by implementing good business practices, such as putting legal contracts into place."

These assets can include anything from creative expression to ground-breaking inventions to the most familiar brands and labels. This is why it is best to get your paperwork in order with regard to the legal aspects, from conception to its
implementation phases."

De'Mar says if a designer like Ngxokolo for example, feels his work was copied, sufficient proof is required to show that the work in question was indeed original and that his rights were in fact infringed.

"In South Africa litigation is a lengthy process and cases of protracted issues tend to be costly in terms of legal fees, so legal disputes are often settled out of court. The courts have the power to award additional damages where there has been a blatant infringement of copyright."

Laduma expressed his feelings about the furore on Instagram. "I've had a few copyright infringement cases in the past, and won majority of them, but Zara took this one to great extremes. My lawyers are dealing with this matter... we will enforce our entitlement of laying criminal charges under the SA Copyright Act, 98," he wrote.

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