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Myer escalates battle with Style and Substance

Thursday, 20 October 2011 | By Michelle Hammond
Myer threatened a start-up retailer with legal action if it publicly protested over the alleged copying of clothing designs, the business’ founder has claimed.

 

Style and Substance, founded by Kathryn Heaven, is a small online retailer providing plus-size women with fashions from overseas designers.

 

In August, Heaven accused Myer of reproducing the designs of US labels Kiyonna and Igigi, sold through Style and Substance, claiming the garments were purchased by a Myer buyer in March.

 

Heaven said the reproduced designs were being sold by Myer under its Leona + by Leona Edmiston range, claiming both US designers were prepared to launch legal action against the retailer.

 

It’s understood the designs were due to appear in a “Big is Beautiful” fashion show at Mercedes Benz Fashion Festival, of which Myer was a principal partner, on August 23.

 

On August 17, Heaven told Ragtrader she planned to attend the fashion show with friends, all of whom would be wearing “two of the [Kiyonna] styles which have been copied seam for seam”.

 

It was stated in the article that Heaven would “stage a quiet protest” at the event, although Heaven has denied saying this.

 

On August 22, Heaven received a letter from commercial law firm Middletons, acting on behalf of Myer, in relation to the aforementioned fashion show.

 

“We are instructed to place you on notice that there is potentially the risk of legal action being taken against you,” Middletons partner Tony Watson wrote in the letter, seen by StartupSmart.

 

“We encourage you to urgently seek your own independent legal advice about making such statements to the press or your proposed conduct at the show.”

 

“The making of statements… may give rise to claims for damages against you for making groundless allegations of copyright infringement, the tort of injurious falsehood, Fair Trading Act claims for misleading or deceptive conduct, or even breach of privacy or defamation.”

 

“The damages award which might be made against you, if such claims were made out, could be substantial.”

 

Heaven says on receiving the letter, she contacted Watson to confirm its message.

 

“I said, ‘What do you determine to be making a scene?’ I was informed that if I turn up, they would consider that to be provocation,” she says.

 

“There would be no placards or red paint… We were going to sit in the front row [wearing the Kiyonna designs] and see if anyone else noticed.”

 

“The inference was that no matter what I did, they would consider it provocation… After the letter, I thought it wasn’t worth it [and chose not to attend].”

 

Heaven says she’s yet to hear from Myer as to whether it will continue to sell the garments, but she has no intention of launching legal action.

 

“I don’t think there’s any real point cluttering up the courts… [but] I do think Myer should issue some sort of statement, particularly on the back of the Middletons letter – it was an open-ended threat,” she says.

 

Heaven says Kiyonna has sent a cease and desist letter to Myer, although it is yet to receive a response, while Igigi is believed to be in the process of sending a similar letter.

 

“What has upset me in all of this is the fact that Myer deliberately took advantage of a small business – me,” she says.

 

Both Myer and Middletons were contacted for comment but did not respond.