She wore an itsy bitsy, teeny weeny…which brand bikini?

Published On 07/12/2012 | By Monique Cormack | Consumer protection

It’s not often that you get to read a case and browse a funky swimwear collection at the same time but this case really has it all – bikinis, trails of Facebook comments, and Justice Tracey explaining the design intricacies of the “High Society Bandeau Top” and the “Goddess Munroe Bustier.”

Leah Madden, the designer behind swimwear label White Sands, has been ordered to pay Seafolly $25,000 (plus costs) by the Federal Court of Australia for engaging in misleading and deceptive conduct.

In 2010, Ms Madden allegedly caught a glimpse of model Samantha Harris sporting a fabulous bikini on the cover of magazine ‘The Gold Coast Panache’.  She was less than impressed to discover that this bikini was not one of her designs but in fact a Seafolly “Goddess” bikini.

This sighting in The Gold Coast Panache sparked Ms Madden to post an album on her personal Facebook page titled “The most sincere form of flattery?” featuring photos of various Seafolly bikinis each next to a White Sands bikini.  She also emailed the photos to various journalists.

A flood of sympathetic Facebook comments quickly followed publication of the photos, as well as articles reporting White Sands had accused Seafolly of ripping off its designs.  Ms Madden believed Seafolly had gained early access to her designs by sending in a fake wholesale buyer to preview and photograph the White Sands collection.

Seafolly did not take the accusations lightly and commenced legal proceedings.  Ms Madden claimed she had made no outright accusation of copying and was instead “questioning the issue of similarity.”  Seafolly rolled out evidence that most of the designs in question had been released to the wholesale market or were otherwise nearing completion well before the dates stated in the Facebook album.

Lawyers for Ms Madden countered with a technical argument that Ms Madden was not making a representation but merely expressing her opinion (which can potentially get you out of a misleading and deceptive conduct claim, provided that the opinion is genuinely and reasonably held), however Justice Tracey decided Ms Madden’s statements would not have been understood by her audience as a mere expression of opinion.

The lesson? The fashion industry is fierce and it’s a good idea to do your homework before you launch a Facebook tirade.  Justice Tracey also suggests conducting a physical inspection of the garments.  Apparently, if Ms Madden had done so, she would have noticed that her “Shelley” bikini pant was “much more brief” than the Seafolly “La Bella” pant.  Itsy bitsy – but totally original – bikinis indeed!

Photo credit:  Flickr /tsuacctnt / CC BY 2.0


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