Difficult to shrug off copycat arguments
The Dunnes case is a test of EU rules protecting stores from having their designs knocked off, Maeve Sheehan writes
WHEN two high street fashion chains collided in the High Court last week, moments of high farce were inevitable.
Who could have foretold six months ago that former justice minister, Michael McDowell would be getting hot and bothered over the finer details of a "faux shrug with cami"? Or that he would point an accusing finger at his legal adversary, Richard Nesbitt, and declare him guilty of wearing an Oxford-striped shirt?
The former Progressive Democrats leader was not displaying an new sartorial interest but rather arguing the uniqueness of the stripe, which featured large on day three of the legal action between two giants of retailing.
Mr McDowell, who has resumed his career as a senior counsel, is representing Mosaic Fashions, the British retailer that owns the high street fashion stores, Karen Millen, Coast and Whistles, in its landmark legal action against Dunnes Stores.
At issue is alleged plagiarism. Mosaic claims that Dunnes Stores has deliberately ripped off designs from the three fashion stores. The disputed garments are a Karen Millen striped shirt and the famed faux shrug cami top, a bowtie from Coast and a Whistles top. Dunnes Stores has denied the allegations and hired Richard Nesbitt, the chairman of Arnott's department store, to defend it.
Rarely have the fripperies of fashion been dissected with such gravitas in an Irish courtroom. Over four days last week, the middle-aged barristers at times struggled to suppress their chuckles as they crossed swords over ribbed stitching, layered borders, sweetheart necklines and bust-hugging fibres. They did so in a court room littered with copies of Marie Claire magazine, door stopper editions of Vogue and expensive handbags.
Beneath the frivolity, however, the case between Mosaic and Dunnes is a landmark legal action that will have profound ramifications on the rag trade and set legal precedent not only in Ireland but in Europe.
The case is the first in Europe in which a high street retailer has gone to court to claim its fashion designs have been ripped off by a rival, citing a new EU regulation passed in 2002.
The global fashion industry has long been at war over high street retailers knocking off their haute couture clothes and selling them for a fraction of the cost. While haute couturiers could claim artistic craft to protect their work, the new EU directive effectively extended protection to high street retailers so they can prevent their designs from being copied too. To avail of it, designers must show that their garments have "individual character".
Whether the mass-produced, high street fashion items on display in court had such "individual character" was among the questions at the heart of last week's showdown.
The benches were adorned with immaculately groomed witnesses. Ian Galvin, the stylish chairman of Mosaic Ireland, confidante of ladies who lunch, and friend of Karen Millen, jazzed up his perfectly cut suit with silk scarves. He was flanked by Jen Kelly, the Irish haute couturiere, and Helen McAlinden, the successful Irish designer who has two shops in London. Their elegant counterparts who were testifying for Dunnes Stores included Helen James, the Irish designer, Susan Maher, who owns a high fashion internet business, and Jenine Corletta, a wardrobe stylist based in New York.
There was no sign of the imposing Dunnes Stores matriarch and textiles director, Margaret Heffernan. She may have cried when she received an honorary doctorate two weeks ago and declared her love for younger brother, Ben, after a bitter family feud, but it seems she has not softened on the faux shrug cami.
Last week, Richard Nesbitt insisted on Dunnes' behalf that Karen Millen's top and shirt had themselves been recycled from original ideas. However, Michael McDowell claimed that Dunnes Stores had bought the disputed items and then given them to fashion houses to make exact copies, which were sold for knock-down prices under its Savida label. He claimed the sweater was made in China and shipped through Korea to Ireland, and the shirt was made in Turkey. "Parasitical copying had taken place" rather than "innocent or coincidental similarities," he said.
Clare Hallam, a knitwear designer for Karen Millen, told how she came up with the faux shrug design. "I designed the garment to look like a vest, like a shrug, to hint that there was a special shrug over the shoulder," she said. "The neckline, one of the key features, was intended to flatter and draw attention to the bust area." She pointed out each of the garment's characteristics in tortuous detail, holding up the tight fitting black top, with three-quarter-length sleeves, low neck, with button and tab detail and extensive ribbing, for inspection by the court. "The Karen Millen lady likes a lot of bust definition," explained Ms Hallam.
Shown the Savida top, she claimed it was almost an exact copy. If they were hung in a shop with the labels removed, she would be hard pushed to tell the difference, she said. Cross-examining Ms Hallam, Mr Nesbitt tried to show that she had also copied the idea, a suggestion she rejected.
"So you just sit down and this is magicked out of nowhere?"
"Yeah, it just came out of my head," said Ms Hallam.
The disputed striped shirts went through the same painful examination. Each was fashioned from contrasting stripes, one blue and the other white stone. Gemma Metheringham, Karen Millen's creative director, described how it was designed by a Karen Millen designer on a business trip to Hong Kong.
Helen McAlinden testified that she had examined both the Karen Millen shirt and the cami top and insisted both designs were directly copied by Dunnes Stores.
Mr Nesbitt then suggested that her opinion might be compromised. "Do you have a track record of a business relationship with Mr Galvin?" he asked. Ms McAlinden said that Mr Galvin used to be a shareholder of her company but was no longer. "The garment business in Ireland is a very small industry," she said.
Dunnes Stores argued that there was nothing new or unique about Karen Millen's garments. Susan Maher told the court the faux shrug was available on the market place long before Karen Millen launched its version in December 2005. "It is evident that this design has been around for a very long time and is very familiar to the consumer," she said. She could see no difference either in "overall impression" between the Karen Millen shirt and another Paul Smith-designed shirt. Ms James could see no difference between Karen Millen's shrug and a Dolce and Gabbana version, nor between a Paul Smith striped shirt and a Karen Millen version.
But Mr McDowell wasn't having it. "Even a husband sitting at home, if his wife came in and asked, he wouldn't say they looked the same," he said before quipping. "He wouldn't dare say they look the same to him."
"My husband would," corrected Ms James.
"We are not dealing with hypothetical husbands here," cautioned an amused Mrs Justice Mary Finlay Geoghegan.
The case will resume on Tuesday for closing submissions.
Both sides agreed to postpone the actions against Dunnes Stores by Coast and Whistles until judgment is made on the Karen Millen case.
