The Butterfly Effect

The Butterfly Effect

This is an updated version of an old post, click here to see the original.

When Similar Designs Aren’t Copyright Infringement

In fashion, detailed prints are everywhere.

Florals, butterflies, paisleys and abstract patterns come in and out of trend, season after season. But what happens when a brand creates a design in-house, only to later see something strikingly similar appear on another label’s garments?

At first glance, it can feel obvious: they copied us.

In law, however, it is rarely that simple.

A well-known Australian case involving butterfly prints shows exactly why — and why suspicion alone is not enough to win a copyright claim.

This is a story about overseas manufacturing, design “leakage”, and the high bar Australian copyright law sets when you allege copying. It’s also a cautionary tale for designers who assume that similarity automatically equals infringement.

What happened in the butterfly case?

The dispute involved two Australian women’s fashion businesses:

• Ladakh, an established fashion label
• Quick Fashion Pty Ltd, selling garments under its Sweetacacia label (About Us – Sweet Acacia)
• Ladakh created an original butterfly print in-house and claimed copyright ownership of that design.

Like many Australian fashion brands, Ladakh manufactured offshore. The butterfly design was sent on a CD to its Chinese factory, which then sent the file on to another Chinese factory to print the fabric in two colour ways. The fabric came back to Ladakh, and garments were produced and sold in Australia.

So far, so ordinary.

The problem arose when Ladakh later discovered dresses sold by Quick Fashion that appeared to use a very similar butterfly print.

Ladakh’s claim

Ladakh alleged that Quick Fashion had copied its butterfly design and arranged for it to be printed in China. On Ladakh’s version of events, Quick Fashion had seen the print in the Australian retail market and deliberately reproduced it.

On that basis, Ladakh commenced copyright infringement proceedings in the Federal Magistrates’ Court in 2011.

Quick Fashion’s response

Quick Fashion denied copying the design.

Its explanation was quite different — and this is where things became legally complicated.

Quick Fashion said it had been shown a fabric sample by a supplier in China, liked it, and purchased it. It argued that it did not know the fabric was copied and had not instructed anyone to reproduce Ladakh’s design.

In other words, even if the design was copied at some point, Quick Fashion said it was not the party that did the copying.

Round one: no proof of copying

At the first court hearing, the judge ruled in favour of Quick Fashion.

That surprised a lot of people — especially because, at first glance, the two fabric designs looked extremely similar. Many observers felt the resemblance was just too close to ignore.

So why did Ladakh lose?

The short answer is this: copyright law is not about how similar two designs look. It is about whether one party copied the other.

To succeed, Ladakh needed to prove that Quick Fashion had actually copied its design — not just that the designs looked alike. That meant showing that Quick Fashion knew about Ladakh’s design and took steps to reproduce it, either directly or indirectly.

Ladakh could not do that.

There was no clear evidence that Quick Fashion had ever seen Ladakh’s design, had access to it, or had instructed anyone to copy it. While the similarities raised suspicion, suspicion alone was not enough. The court made it clear that even very strong suspicion does not meet the legal test for copyright infringement.

In other words, the law requires proof — not guesswork.

Round two: the appeal

Ladakh did not give up. It appealed the decision, hoping the higher court would take a different view.

On appeal, the court did acknowledge something important: the similarities between the two fabrics were significant. Taken together, they were probably too close to be brushed off as pure coincidence.

But that didn’t automatically mean Ladakh would win.

At this stage, the focus shifted to a different — and crucial — question: who actually did the copying?

Quick Fashion argued that it had not copied Ladakh at all. Instead, it said that an unknown third party in China may have had access to the design. According to Quick Fashion, its manufacturer simply purchased ready-made fabric from a local Chinese market, without knowing where the design originally came from.

This explanation mattered because copyright law does not automatically punish a business just because a copied product ends up in its hands. The law looks closely at who was responsible for the copying itself.

The judge noted that Ladakh’s case was missing what lawyers often call a “smoking gun” — something concrete that directly linked Quick Fashion to the act of copying. There were no emails, instructions, contracts, or witnesses showing that Quick Fashion had asked for the design to be replicated or had knowingly used a copied fabric.

Because that missing link could not be proven, the appeal failed.

The original decision stood. Ladakh received no compensation and had to absorb its own legal costs.

Why this matters: similarity is not enough

This case highlights a core principle of Australian copyright law that often catches designers off guard:

1. Copyright protects against copying, not against similarity alone.
2. Even if two designs look strikingly alike, the copyright owner still has to prove that copying occurred. That proof can be direct (for example, instructions to copy) or indirect (such as access to the original design combined with strong similarities). But without evidence of copying, similarity by itself will not win a case.
3. Copyright law also allows for something called independent creation. That means two designers can legally create very similar designs if one did not copy the other. From a legal point of view, coincidence — however unlikely it feels — is still possible.

The overseas manufacturing problem

This is where things become especially challenging for fashion brands.

In offshore manufacturing environments, designs often pass through many hands: designers, agents, factories, printers, fabric suppliers and traders. Along the way, files may be shared, samples may circulate, and excess fabric may be sold into local markets.

Once a design leaks into that wider supply chain, control becomes much harder. So does proving responsibility.

Even if a designer strongly believes their work has been copied, tracing how that happened — and who is legally responsible — can be incredibly difficult.

From a legal perspective, this is why strong contracts, confidentiality clauses, and disciplined supply-chain practices matter so much. Prevention is often far more effective than trying to fix the problem later in court.

What about trade marks?

An interesting side note in cases like this is the role of trade marks.

Butterfly imagery, for example, is commonly registered as a trade mark in Australia, particularly in the fashion and jewellery space. Trade marks do not protect artistic expression in the same way copyright does. Instead, they protect brand identifiers — things that signal the source of goods to consumers.

For businesses that consistently use a distinctive motif, logo or symbol, trade mark registration can offer an extra layer of protection. Importantly, trade mark infringement does not rely on proving copying in the same way copyright does. The legal test is different and, in some situations, easier to enforce.

Key take-away lessons for designers

This case shows that copyright is useful but not guaranteed to save you when someone’s design looks similar to yours. Even strong similarities are not enough without proof of copying, and the law allows for independent creation, so two people can end up with similar designs without infringement.

To reduce risk, designers should keep good records, limit who can access their designs and have strong contracts with overseas manufacturers (including confidentiality and IP clauses).

Also, make sure copyright ownership is clearly documented, and consider registering trade marks for key motifs or brand elements so protection is planned early rather than relied on after a dispute.

NOTE – Sweet Acacia is still active as a fashion wholesaler and label based in Surry Hills, Sydney, supplying boutiques and major retailers in Australia and overseas, and now positions itself as a manufacturing and wholesale business specialising in Australian‑designed party, occasion and holiday wear under in‑house brands such as Morning Mist, Alice Elle and WHOIAM, with ongoing online and retail presence indicating it continues to trade in the mid‑market young women’s fashion space rather than being a defunct player from the Ladakh era

Case citations – Ladakh Pty Ltd

Ladakh Pty Ltd v Quick Fashion Pty Ltd FMCA 919 (Federal Magistrates Court – first instance)
AustLII link:
https://classic.austlii.edu.au

Ladakh Pty Ltd v Quick Fashion Pty Ltd FCA 389 (Federal Court of Australia – appeal, Jessup J)
Federal Court / AustLII links:

---

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.