Court find bikini designer’s rip-off claims against Seafolly on Facebook were “in trade or commerce” not personal

An Australian bikini designer has lost her appeal to the Federal Court against swimwear giant Seafolly after the court found she falsely claimed on Facebook the swimwear giant had stolen her designs.

Leah Madden, the designer of White Sands Swimwear, posted pictures on her Facebook page under the heading “The most sincere form of flattery?” containing photos of models wearing Seafolly bikinis alongside photos of models wearing White Sands bikinis.

She then posted comments including, “Seriously, almost an entire line-line ripoff of my Shipwrecked collection,” and emailed the Facebook page to a range of media organisations.

The Federal Court initially found Madden had falsely accused Seafolly of plagiarising her designs and awarded Seafolly $25,000 in damages

Madden appealed this decision but the full bench of the Federal Court found even though Madden’s comments were made on her personal Facebook page they were still in trade or commerce. 

“The evidence showed that a substantial number of those who made comments on the personal Facebook page were in the fashion industry,” the court found. 

The Federal Court also took into account the number of friends Madden had on Facebook and said over 500 friends could be regarded as significant in evaluating the loss Seafolly suffered.

The court found Seafolly was entitled to repel the attack of plagiarism by Madden, but calling Madden’s conduct “malicious” overreached.

Intellectual property lawyer Natalie Hickey told SmartCompany the lesson for business is that Facebook is public not personal. 

“[Madden’s] comments on Facebook were intended to be personal and in 2014 for someone to still have that view, even though it reflects what many people think, is just not true.”

Hickey says the full bench seized on Madden’s reference on Facebook to “buy my line” and were able to extrapolate from that comment that Madden was engaged in commercial activity and could be construed as “trade or commerce” under consumer law.   

“When you are engaged in business when using social media you will be treated as a business even though it’s Facebook and it’s not a traditional marketing avenue,” Hickey says.

“There is a lesson in separating out what is your business and what is personal.”

Hickey also highlights the full bench’s criticism of Seafolly for labelling Madden’s conduct as “malicious”.

“[Madden] was reckless in that she clearly got her dates wrong as many of her designs post-dated Seafolly’s designs, but many people can be passionate and misguided but that does not mean you are malicious,” she says.

“Before if you use language like ‘malicious’ or language that indicates ill intent like ‘fraud’, be very careful about using it at all, or have facts to back it up,” Hickey says. 

The full bench asked the trial judge to assess damages and Hickey says it will be “very interesting” to see what sort of assessment the court will make regarding Madden’s loss as a result 

SmartCompany contacted Seafolly and Madden for comment but did not receive a response prior to publication. 


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