Can I start an online business selling replica designer stuff?

Dear Aunty B,

I am thinking of starting an online business selling replica designer handbags and accessories. As long as I state that these are replicas and not the real thing, am I breaking any laws?

Hopeful,

Laburnum

Dear Hopeful,

What are you thinking? Well, you are obviously not thinking so let me put it this way.

Imagine that you are a designer. You might spend years studying design, thinking about design, travelling to the great countries of the world to sketch designs and then you see your creativity and skills come to life in a product such as a handbag. Aren’t you proud? Then aren’t you annoyed when you see fakes, rips offs and replicas that never acknowledge or pay for the skills and creativity that went into the design?
But that’s just addressing the moral issue here.

Legally our lawyer James Omond says you don’t have a leg to stand on. 

Putting a disclaimer that the bags are replicas will get around two of the legal hurdles (misleading and deceptive conduct, and passing off), but you are still left with a number of other avenues where the original designer can take legal action against you. For example, if you had the “LV” lettering from the Louis Vuitton bag, or the Paul Frank monkey’s head, you could be up for trade mark infringement.

Finally, there is also the potential claim of copyright infringement – and a case just last year when Elwood Clothing Co had a victory over Cotton On Clothing reinforces the ability of the producer of “designer” goods to take action against knock-offs.

You should also be aware that there are industry bodies which monitor and take action, particularly against counterfeiters operating on eBay and at markets. These groups include not just luxury goods manufacturers, but also companies like Billabong and Oakley.

So Hopeful, in short: Don’t go there. You won’t be able to sleep at night. Look around for another opportunity that ticks the legal – and moral – boxes.

Be smart,

Your Aunty B

Aunty B is currently on holidays sailing the South Pacific and sipping piña coladas, but she will be back soon with fresh advice for your business.

Email your questions, problems and issues to  auntyb@smartcompany.com.au right now!
This article first appeared on August 31st, 2009.