Protecting textile patterns and designs

Protecting textile patterns and designs

Protecting textile and fabric designs under Australian IP law

Textile patterns and fabric prints are at the heart of many fashion and homewares brands – but they are also fertile ground for copycats and disputes. If you design, print or commission patterns, understanding how Australian intellectual property law works is essential to protecting your work and staying out of trouble.

This insight explains how copyright, trade marks and other laws apply to textile and fabric designs in Australia, and why getting tailored advice from an intellectual property lawyer can save you time, money and stress down the track.

1. Why textile patterns are protected under Australian copyright law

In Australia, most textile patterns, placement prints and illustrations are protected automatically as “artistic works” under the Copyright Act 1968 (Cth).
You do not need to register copyright. Protection arises as soon as:

• you create an original design; and
• it is recorded in some form (for example, as a sketch, digital file or print sample).

Copyright gives the owner exclusive rights to:

• reproduce the work (including printing it on fabric)
• publish, communicate or adapt it
• authorise others to do those things by licence.

From a risk perspective, the safest way to minimise infringement risk is still to design from scratch, rather than tracing or closely “borrowing” from existing fabrics, Pinterest images or runway photos.

Why see a lawyer?

An IP lawyer can help you work out whether your designs qualify as “artistic works”, whether any overseas influences are too close for comfort, and how the Copyright Act 1968 (Cth) sits alongside the Designs Act 2003 (Cth) in your particular business model.

2. The “10% rule” myth and substantial reproduction

A persistent myth in the industry is that if you change 10% of a design – for example, by altering colours or removing some motifs – you are safe. There is no “10% rule” in Australian law.

The real test is whether you have “substantially reproduced” someone else’s artistic work under the Copyright Act 1968 (Cth).

• Substantial does not mean “most” – it means an important or distinctive part.
• Copying a signature motif, layout or arrangement can infringe, even if the overall design looks somewhat different.

If you photograph or scan an overseas fabric and ask a local printer to “recreate something similar”, both you and the printer can potentially be at risk.

Why see a lawyer?

Because “substantial reproduction” is a legal judgement call, it is wise to have a lawyer sense‑check borderline designs before you invest in sampling and production. They can also help you set up clearance processes so designers and printers know when to raise red flags.

3. When contractors design for you – ownership and the Copyright Act 1968 (Cth)

Many textile and fashion businesses assume they own the copyright in designs created for them because they paid for the work. Under the Copyright Act 1968 (Cth), it is not that simple.

• Employees: as a default rule, the employer usually owns copyright in works created in the course of employment (subject to any contract).
• Contractors, freelancers and studios: they ordinarily own copyright by default, even if you commissioned and paid for the design.

If you do not own the copyright, you may not be able to:

• stop others from copying the design; or
• stop the designer from re‑licensing the pattern to your competitors.

The solution is a written copyright assignment that complies with the Copyright Act 1968 (Cth). It should clearly state that copyright in specified works is assigned to your business.

Why see a lawyer?

An IP lawyer can draft or review your contractor and licensing agreements so that ownership and rights are clear, enforceable and consistent with the Copyright Act 1968 (Cth). That is often far cheaper than trying to “fix” ownership problems after a dispute arises.

4. Designs Act 2003 (Cth): when to consider registered designs

For some products, particularly where the 3D or repeated appearance of a textile design is central to the product, it may be worth considering registration under the Designs Act 2003 (Cth).

• Copyright protects the artwork itself as an artistic work.
• A registered design protects the overall visual appearance of a product (for example, a particular surface pattern applied to a type of product) under the Designs Act 2003 (Cth).

The interaction between copyright and designs is complex. Industrially applying a two‑dimensional artistic work (such as a drawing) to products can, in some cases, limit copyright remedies and make design registration important. Section 18 of the Designs Act 2003 (Cth), for example, deals with how prior publication of an artistic work interacts with design registration.

Why see a lawyer?

A lawyer experienced in both copyright and designs can help you decide whether to rely on copyright alone or to file for a registered design, and can guide you on timing and confidentiality so you do not accidentally undermine your own protection.

5. Indigenous designs and the Copyright Act 1968 (Cth)

Using Indigenous Australian art and motifs raises both legal and cultural issues.

Indigenous artworks are protected as artistic works under the Copyright Act 1968 (Cth), and courts have recognised that misuse can also cause significant cultural harm.

In the well‑known “carpets case” (Milpurrurru v Indofurn Pty Ltd), a rug company reproduced Aboriginal artworks on carpets without permission. The Federal Court found copyright infringement under the Copyright Act 1968 (Cth) and misleading conduct under the then Trade Practices Act. Significant damages – including for cultural harm – were awarded.

If you wish to incorporate Indigenous motifs:

• do not copy from existing artworks, souvenirs or online images
• work directly with artists or art centres under clear agreements
• seek advice on copyright, moral rights and appropriate cultural protocols.

Why see a lawyer?

An IP lawyer familiar with Indigenous cultural and intellectual property can help structure respectful collaborations and ensure your agreements properly address copyright, moral rights and community expectations.

6. Trade marks, patterns and “trade dress”: Trade Marks Act 1995 (Cth)

Copyright is only one side of the story. Over time, certain patterns, stitching and tags can become part of your brand identity and be protected as trade marks under the Trade Marks Act 1995 (Cth).

Under the Trade Marks Act 1995 (Cth), a trade mark can be:

• a word or logo
• a colour or combination of colours
• an aspect of packaging
• a pattern, shape or other distinctive feature.

Famous examples relevant to textiles and fashion include:

• the Levi’s red pocket tab and distinctive pocket stitching
• the Burberry check pattern
• the Louis Vuitton monogram pattern.

These are registered trade marks. Using confusingly similar features on similar goods can infringe trade mark rights, even if you drew the design yourself.

This kind of overall look and feel is sometimes described as “trade dress”, and elements of it can be registered in Australia if they function as a badge of origin.

Why see a lawyer?

Trade mark distinctiveness and “trade dress” can be nuanced. An IP lawyer can help identify which of your recurring elements are worth registering under the Trade Marks Act 1995 (Cth), prepare applications, and respond to objections from IP Australia.

7. SEO‑friendly practical checklist for designers and brands

If you are in the textile, fashion or homewares space, here are some practical steps to protect your fabric designs and patterns under Australian IP law:

• Understand copyright: know when your textile patterns are protected as artistic works under the Copyright Act 1968 (Cth).
• Stop relying on the “10% rule”: focus on originality and avoid substantial reproduction of others’ designs.
• Get ownership sorted: use written assignments so your business owns the copyright in contractor‑created designs.
• Consider registered designs: talk to a lawyer about whether to register key designs under the Designs Act 2003 (Cth).
• Respect Indigenous art: follow best practice and seek permission and legal advice before incorporating Indigenous motifs.
• Build your brand: identify signature patterns, stitching or tags that may be registrable as trade marks under the Trade Marks Act 1995 (Cth).

When to talk to an intellectual property lawyer

You should consider getting advice from an IP lawyer when:

• launching a new textile or fabric design line
• commissioning freelance designers or studios
• suspecting your designs have been copied
• planning to invest in trade mark or design registrations
• working with Indigenous artists or communities.

Early advice helps you:

• avoid infringing other people’s rights
• secure and document ownership of your own designs
• choose the right mix of copyright, designs and trade marks
• respond strategically if a dispute arises.

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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.