The recent decision of the New Zealand High Court in G-Star
Raw C.V. v Jeanswest Corporation (New Zealand) Ltd is a
reminder that copyright laws in Australia and New Zealand differ on
In this case, G-Star successfully sued Jeanswest for
infringement of copyright in design drawings for its Elwood jeans
in New Zealand in circumstances where it would not have succeeded
I use the term 'successfully' with some qualification.
After eight days of trial with two counsel on each side G-Star were
awarded damages of NZ$325.
G-Star sought additional damages for wilful infringement, but
these were declined. Rather, the court chose to infer that the
infringement in New Zealand was due to Jeanswest focusing on the
copyright position in Australia and failing to recognise that the
legal position in New Zealand was different.
A brief synopsise as to some positions common to both Australia
and New Zealand and the difference relevant in this case
Australia and New Zealand –common ground
Copyright attaches to original works automatically in both
countries. There is no registration system in either and no formal
process to go through to obtain copyright protection.
In terms of 'copyright in jeans', the copyright is not
in the jeans per se, but rather in the original drawings on which
the jeans are based. If you copy the jeans, you infringe copyright
in the original drawings on which those jeans are based.
Australia and New Zealand – the differences in
In Australia there is an exemption to copyright infringement in
relation to artistic works where the design is or could have been
registered as a design under the Designs Act (which includes
designs for jeans). This exemption applies if the design has been
applied to products (jeans) and sold in Australia or elsewhere.
As a result in Australia if a copyright owner owns a design
registration, they need to sue for design infringement. If they do
not have a design registration then copyright does not provide a
The above means that under Australian law Jeanswest were free to
use G-Star's jeans as the basis for its own jeans designs
without committing copyright infringement.
This contrasts sharply with the position in New Zealand. In New
Zealand, copyright continues to exist in artistic works (drawings
of jeans) regardless of any design registration. Instead, the term
of copyright in artistic works which have been industrially applied
is shortened to 16 years to align closely with the design
Take home points
If you are operating an Australasian business you need to take
account of the copyright laws in both jurisdictions. In
Get design protection in Australia for designs that you will be
applying industrially if you want exclusivity over that design in
Don't assume you cannot copy a third party's
industrially applied design in Australia just because you cannot
copy it in New Zealand, and
Don't assume you can copy a third party's industrially
applied design in New Zealand just because you can do so in
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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