In 2015, 90% of the world’s top 100 brands had an active Instagram account. Indeed, with 130 million-plus users, Instagram has become an essential marketing tool. However, there are some downsides to using this platform to market a product. This article details what they are and how to avoid them.

Dangers of Marketing on Instagram

As a social media platform and marketing tool, Instagram appears virtually unstoppable. It has approximately four hundred million users, and its revenue is tipped to reach $2.81 billion in 2017. However, while brands everywhere find it a compelling way to market their product, doing so enables others all over the world to copy and steal their designs and product ideas. In Australia, this is an acute problem for fashion designers.

For those just starting out in the profession, many designers use Instagram because it is a relatively cost-effective means of garnering sales and establishing a brand. However, designers find that their designs turn up, picture for picture, on websites all around the world. Not only do these sites copy and sell their designs, they often sell it for less. While this imposes a heavy emotional toll on designers, it also has significant commercial impacts. Copied goods diminish a brand, its sales and its bottom line, preventing many new designers from getting a foothold in the industry.

Such a scenario is an all too familiar story to Angelique Woodburn. Angelique is a designer who started and now operates the children clothing label Howi. She founded the business over a cup of tea and a Tim Tam and operated it out of her home. Angelique uses Instagram extensively to market her clothes. One of her perennial bestsellers was her ‘Boss’ t-shirt. She manufactured it in Australia and sold it for $25.00. After she had featured the t-shirt on Instagram, it began appearing for sale on other websites across the world. Customers of these counterfeit clothes included Australian retailers. These versions typically sold for a fraction of the price she offered. The situation became so bad that Angelique chose to withdraw them from sale, as her credibility as an original designer was questioned. Such a professional string, coupled with her knowledge of the sacrifices she made to start Howi, left her heartbroken.

The fact that the Australian legal system seems unable to cope with and handle the situation exacerbates this predicament. Justin Cudmore, the current director of the Australian Fashion Chamber, describes the legal system’s protection of Australian designers, especially young ones, as ‘behind the eight ball.’ He points out that while a designer can own the copyright for a design on paper, once they mass produce it, they have no protection from someone else copying it.  

What Can Designers Do?  

The only way that designers and others in creative industries can protect their work is to register the design with IP Australia. IP Australia is the national government authority tasked with registering designs as well as other forms of intellectual property. Copyright subsists automatically in all original works. However, it can be a difficult task for a court or other party to determine whether the artistic work was sufficiently unique and original, as well as sufficiently similar to the copied work. When a designer registers their design, they protect the visual appearance of their product and obtain an intellectual property right in it. As such, they have the exclusive right to use, licence or sell that design. If a designer wishes to make their intellectual property right legally enforceable, they need to certify the design as well. Certification means that if another person or entity uses the design without permission or a licence, the designer can take legal action and it is far easier for a presiding body to determine the true owner of the intellectual property.

Registration protects a design for five years from the date of application. A designer can also renew it for a further five years. Without it, a designer has no legal means to protect their design. And if they also do not also certify the design, they cannot legally enforce their right. Certification involves having the design formally examined. To be certified, a design must be new and distinct. A designer can also apply to have their design internationally protected under the International Convention for the Protection of Industrial Property (Paris Convention).

What is the Registration Process for a Design?

Registration and certification take time and does impose a cost on designers. IP Australia requires a fee per design rather than application. Such a policy means that one application with several designs is an expensive exercise for most designers. A person needs $250 to register one design if they apply online; this fee increases to $350 if they apply by post. Further, certification requires an extra $420. Understandably, this imposes a substantial cost on designers, particularly young and fledgling ones.

Key Takeaways

As a fashion designer marketing your products on Instagram, it can be a wise idea to register your designs if you wish to protect them. While Instagram can be the best and cheapest way of advertising your products, it also leaves you vulnerable to copycats.

Protecting your business’ intellectual property is important, and LegalVision has assisted many in doing so. Should you want to discuss protecting your intellectual property, or registering your designs, feel free to give us a call on 1300 544 755, we’d be happy to advise and assist.

Carole Hemingway

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