Court slams small designer for falsely accusing bikini maker Seafolly of ripping her off

An Australian bikini designer has lost her legal battle against swimwear giant Seafolly after a court found she falsely claimed the swimwear giant had stolen her designs.

Leah Madden, the designer of White Sands Swimwear, has to pay Seafolly $25,000 in damages after claiming on her Facebook page that it had stolen her designs.

Madden posted pictures on Facebook under the heading “The most sincere form of flattery?” containing photos of models wearing Seafolly bikinis alongside photographs 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.

Seafolly immediately issued a press release describing Madden’s Facebook claims as “completely false and without foundation” and “made maliciously to injure Seafolly”.

The swimwear giant said many of the designs Madden claimed it had copied were released into the marketplace by Seafolly before White Sands released its bikinis.

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“Seafolly also says that the other designs which Seafolly is alleged to have copied were substantially progressed in development prior to White Sands Swimwear releasing it relevant swimwear garments into the marketplace” the press release said.

The legal brawl then escalated when Madden counter-sued Seafolly for defamation on the basis it had claimed she wanted to maliciously injure the business however on Friday the Federal Court found Madden’s claims were misleading and deceptive.

Justice Tracey found Seafolly did not copy White Sands’ bikinis and the Seafolly bikinis were original designs created by employees of Seafolly and created without reference to the White Sands bikinis.

He found Madden should have investigated whether the bikinis were copied before making her claims.

“Before posting her views she failed to take a number of steps which would have elicited facts inconsistent with the notion that any copying of her garments had occurred,” Justice Tracey said.

“She could, for example, have made enquiries of retailers to establish when the Seafolly garments were placed on the market.

“She could have attended a retail outlet and examined some, at least, of the Seafolly garments.”

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Richard Hoad, partner at law firm Clayton Utz, told SmartCompany the Court was fairly critical of Madden’s conduct.

“It shows you the danger of making a posting on Facebook and making allegations in the heat of the moment when you have not done the research to back it up,” he says.

“People still treat emails and Facebook posting as a less serious communication forum than a statement you might make in a press release or a more public forum but it has the same legal effect.”

Hoad says it is difficult to establish that a design has been copied in the fashion industry with many cases failing.

“The scope for a bathing suit designer to differentiate themselves is fairly limited, there are only so many ways to design a one piece or two piece so it does make it difficult to prove a copyright case,” he says.

Hoad says following changes in the law a few years ago it is very difficult for companies such as Seafolly to sue someone like Madden on the basis of defamation.

“The legal changes prevent companies from suing from defamation in most cases, and the loss of the right to sue for defamation can be problematic,” Hoad says.

“In this case Seafolly had other rights to rely on, but in some cases it can mean your avenue for redress is a little more difficult than it used to be.”

SmartCompany contacted Madden, White Sands and Seafolly for comment but they did not respond prior to publication.

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