Expert evidence
87 Both experts agreed that the Escape Bag displays quality of the workmanship. They also agreed that the neoprene fabric used in combination with the rope handles represented a departure from bags known as at November 2013. However, whereas Ms Beale referred to the Escape Bag as "unique", Mr Smith was of the view that "combining 2 or more features that have been in common use over many years [was] an evolution in styling rather than a completely new design". In cross-examination, Ms Beale accepted that the uniqueness to which she referred arises from the choice or "design decision" to use perforated neoprene and sailing rope, rather than in any contribution to the creation of those underlying materials.
88 Ms Beale, whose professional qualifications are in design, gave evidence that a designer uses their technical knowledge and understanding as well as aesthetics to come up with design solutions, and that the design of the Escape Bag is not only functional but assessed holistically the bag:
… has clever design elements that make it distinctive, such as the way in which the form makes the bag self-supporting - the bag sits squarely when the studs are open - which means that you are able to see and access the contents easily. Also, when the studs are closed, the overall form of the bag takes on a softly curved organic form.
89 In cross-examination, Ms Beale explained that what she meant by the term "organic" was something less geometric in form, so that the appearance of the bag changes quite substantially from when the press studs are undone, when it sits like a square bag or carry all bag.
90 Ms Beale was of the view that there was an exercise of skill on the part of the designer in the end to end creation process of the Escape Bag. She opined that it was obvious to her that an iterative design process had been employed and the stages of development - problem solving the overall shape and form, "particularly how they resolved the handles" - showed "an informed and observant approach". She also opined that a "strong understanding of materials [was] demonstrated" -
the designer has intentionally selected specific materials and used their knowledge of their unique performance characteristics to assist in resolving the design.
Those materials included the sailing rope which, according to Ms Beale, was "only an aesthetic choice" and did not perform a function in itself.
91 Ms Beale expressed the opinion that the designer had used trained technical skills to work through different ideas, "refining and building upon previous samples to resolve specific issues, and then considering how this impacts the overall product". She considered that it would be unusual for a person untrained in the design principles to follow this process.
92 When asked about the aesthetic qualities of the bag, Mr Beale stated:
Pleasing to the eye, this is a simple and elegant* neoprene tote. [Note: *elegant is used to not only describe aesthetics, but also the way in which this neatly solves the design problem - efficient, simple, no unnecessary materials or details to detract from the overall look, function or intent of the object].
The bag's simplicity of form lies in a well-balanced silhouette, combined with a restrained use of materials (limited to the essential elements of neoprene, sailing rope, slimline press studs and other hardware)… This bag has clever design elements that make it distinctive, such as the way in which the form makes the bag self-supporting - the bag sits squarely when the studs are open - which means that you are able to see and access the contents easily. Also when the studs are closed, the overall form of the bag takes on a softly curved organic form.
93 Ms Beale also opined that overall ratios of the bag were "very well handled from an aesthetic and technical sense", stating that:
When you are designing a bag, if the surface area or size of the base of the bag is narrower than the height of the bag (within a certain scale) then the base is not as stable - for the State of Escape bag, the base being the same size as the front panel means that it is able to support the structure - and if it were any narrower, the bag would not stand up.
94 Ms Beale regarded the key elements of the bag to be:
(a) its simple form:
… a rectangular shape that is self-supporting, but can also be closed through the use of two slim-profile press studs. When closed, the bag has a softened, sculptural and organic form.
(b) the sailing rope handles and trims:
… they are both functional and also decorative, making the bag have a distinctive look that is easily recognisable.
(c) the fact that the rope handles of the bag are stitched to the panels and base and then go through the panel to the inside of the bag to form handles;
(d) the use of high quality materials:
… a high grade neoprene, sailing rope, hardware and trims.
(e) the fact that the colour has been carefully considered in terms of the neoprene and rope combinations -
… harmonious colours to make the overall look of the bag consistent, rather than a bright contrast that would draw attention.
… it appears to me that time and energy has been spent in colour selection of each element so that the use of colour is harmonious. This gives an overall, sophisticated impression because nothing stands out. The colours are well selected, so that the overall effect is 'balanced'.
95 In cross-examination, when asked about colour, Ms Beale said that colour related back to the overall look and impression of the bag being consistent - "all of the elements in the bag are harmonious".
96 Mr Smith, who has had more than 30 years' experience (both in Australia and internationally) in the design, development and manufacture of handbags and other accessories such as briefcases, wallets and belts, opined that there is an interplay between the functionality of a handbag and the design or styling choices. He gave two examples to illustrate this point. First, if the handles of a bag were placed inappropriately - either too close to the centre of the bag or too close to the extremities of the bag - the bag may sag or droop, making it awkward to carry. Secondly, the purpose of a bag might dictate the range of fabrics that can viably be used.
97 Mr Smith identified the following as functional considerations that informed the design of a tote bag:
(a) a durable base and sides with an opening at the top;
(b) comfortable handles positioned in a way that supports the structure of the bag and helps it to retain its form when in use;
(c) the size of the handles;
(d) material selection - for instance, synthetic materials have a tendency to fray and where such fabrics are used, the functional need to avoid the fabric fraying may dictate some design or style choices, such as the need to bind the edges of the fabric to prevent fraying; and
(e) the inclusion of pockets or removable pouches.
98 Mr Smith opined that the Escape Bag incorporates elements of conventional tote bags and conventional carry all bags. By way of explanation, he identified:
(a) the proportions, stating:
… there is nothing unique about the external shape of the bag... the State of Escape Bag reflects the design of conventional tote and carry all bags… I do not regard the dimensions of the State of Escape Bag as unusual - I have seen many bags with similar dimensions. It is a fairly common "east-west" design, which means it is wider than it is tall -
(b) the construction - saying that, like a conventional carry all bag, the Escape Bag has three elements (excluding the handles and detachable pouch), being a single piece which forms the front, base and back and two separate side pieces (gussets); and
(c) the stitching - saying that the bag has been stitched together in a conventional manner.
99 Mr Smith also made the following observations about the Escape Bag:
(a) Mr Smith considered there was nothing unique about the use of the press studs to "pinch" in the sides. His opinion was that the size and shape of the bag and use of press studs involved both functional considerations and design choices, though he agreed in cross-examination that the overall shape of the body of the bag is a design choice;
(b) the choice of neoprene as a fabric was primarily a design choice;
(c) the handles are clearly functional, but the use of sailing rope is a matter of design choice with an added functional quality that the rope is a strong material that is unlikely to stretch or break. In cross-examination Mr Smith agreed he had not seen sailing rope of the kind used in the Escape Bag on bags before;
(d) the use of rope passing under the body of the bag has both a functional and design purpose - in terms of design, the decision to have the handles pass under the body of the bag is aesthetic and does not seem to serve a significant structural purpose; in terms of functionality, the rope helps to protect the bottom of the bag and assist to limit wear and tear to the neoprene fabric. Small "feet" on the bottom of a bag play a similar role. The rope handles entering the body of the bag near the top lip is "mainly" a design feature;
(e) the detachable neoprene pouch has a functional role but the choice of neoprene for the pouch and sailing rope to attach the pouch to the bag are design choices;
(f) the use of rubber binding around the rope joins/ends is primarily a functional feature though the particular type of binding has a design aspect in that it works in with the overall look of the bag and provides a very neat finish;
(g) the heat seal binding around the top lip of the bag has two functions - it prevents the fabric from fraying and has a design function in that it gives a sharp edge to the bag and makes it look finished. Mr Smith commented that he had not seen that method of binding before;
(h) the use of the same binding around the point where the rope handles pass through the bag is a design choice in that it creates a neat finish around this area of the bag, but Mr Smith considered it also has an important functional purpose in that it prevents the fabric from fraying and tearing and also covers over some heavy stitching which strengthens this area of the bag and makes it more durable;
(i) the internal seams are "quite wide" (about 10mm) which means that the fabric gapes around the seam and creases around the corners. Mr Smith commented that if he was making the Escape Bag he would have a seam allowance of no more than 6mm to address this. In cross-examination he accepted that Ms MacGowan had chosen this aesthetic alternative; and
(j) Mr Smith accepted in cross-examination that cutting the material so as to avoid cutting through any of the perforated holes would be something requiring a good deal of care.
100 Mr Smith also gave evidence that he did not think that the process of designing the Escape Bag was likely to have involved any special training, skill or knowledge beyond the standard skill set of a person who has "quite basic" training and experience in handbag making. He opined:
The overall design of the State of Escape Bag (external shape, dimensions) itself is straight-forward, adopting… well-known elements of conventional tote bags and carry all bags.
…
I consider the bag itself to be very basic. It is a standard construction and size… In my view, the State of Escape Bag could be made easily by a person who has quite basic training and experience in handbag making.
101 Mr Smith also opined that the manufacturing techniques used to make the Escape Bag were largely standard techniques that he had seen used over many decades in the design and manufacture of handbags. His evidence was that there were some elements of the manufacture of the bag that were not personally familiar to him, being: the stitching of the sailing rope to the bag; the technique used to apply a rubber seal to the rope ends/joins; and the binding tape used around the lip of the bag and the entry point of the handles into the bag. In his view, these were examples of manufacturing solutions that are developed from time to time to meet the needs of a particular design and, in his experience, such solutions are usually arrived at through a process of research and trial and error.
102 Mr Smith was of the view that Ms MacGowan was "engrossed" in the making of her bag, wanting every detail to be perfect. He did not consider this practical for commercial production, unless it was for a high end bag (for example, a bag costing $2000). He considered her requirements to be "excessively pedantic". It was submitted for State of Escape that this evidence drew into sharp focus the difference between Ms MacGowan's quest for quality, simplicity and beauty and Mr Smith's pragmatic concern to employ production techniques that were economically driven. In cross-examination, Mr Smith did agree that the overall aesthetic of the bag was one that was free of embellishments that might detract from the purity of the overall look. He was not prepared to say the bag was beautiful, because he did not find it beautiful, adding:
…but some people may, but it's simple, elegant, and distinctive, yes, I agree.
103 In answer to the question whether the Escape Bag has any feature that represents a departure from carry all bags or tote bags Mr Smith had seen previously, his answer was:
In my opinion, the State of Escape Bag has a strong nautical / beach look. In itself, I do not regard this as an original idea… I have seen many bags which demonstrate a similar theme over my professional life. The two main features of the State of Escape Bag which create this look at [sic] the use of neoprene and sailing rope. These are strong design choices. However, in my view, neither of them is, in itself, new. Neoprene has been used extensively for items such as bags and laptop covers, particularly where protection from impact is an important factor. Similarly, rope handles have been used as a design choice on handbags in the past.
There are some features of the State of Escape Bag which… are unfamiliar to me as finishes for a handbag. They are: stitching the sailing rope to the bag, the technique used to apply a rubber seal to the rope ends / joins and the binding tape used around the lip of the bag and around the entry point of the handles into the bag.
104 Mr Smith concluded that the bag is "a very basic bag", which he does not view as "original or unique", and which is "largely made using quite basic techniques". In his view, the differences between the Escape Bag and other bags that came before it are "minor and are no different to the incremental changes [he had] seen in handbag design over the years". Whilst he agreed with Ms Beale that the rope and neoprene were "somewhat unusual" primary materials, he also stated that he had seen both rope and neoprene on bags previously. In his view, the shape of the bag was "standard".
105 The experts prepared a joint expert report in which they agreed on the following matters, amongst others:
(a) the Escape Bag is in the style of a carry all bag;
(b) the Escape Bag is constructed using a standard construction method of "stitched together and then turned out" and other elements conform to what is generally expected of this style of bag - significant skill, training or knowledge was not required beyond what was expected in the design or manufacturing process; and
(c) the Escape Bag shape and dimensions are fit for the purpose of a carry all bag.
106 However, the experts disagreed on whether the external shape was "significant". Ms Beale was of the view that the effect on the shape when the press studs are engaged, which alters the shape and allows for a different silhouette, gives the bag an element of distinctiveness, whereas Mr Smith was of the view that to create the volume necessary for the function of the bag as a carry all, the best option is to widen the base for this style of bag. In his view, the press studs in the gusset ensure better security when closed and easy entry when open.
107 As to the specific attributes of the Escape Bag upon which the experts were asked to comment, they agreed that:
(a) neoprene fabric is not significant alone;
(b) the use of rope for handles is not significant alone;
(c) there is a precedent in design for the arrangement of handles or appearance (running down the exterior of the front and back, under the base and passing through the body of the bag near the top);
(d) the use of piping around a gusset or edge of a bag is common practice. However, the use of rope is less usual. Piping is used often to reinforce and protect corners, or to help maintain the overall shape of the bag;
(e) the use of a detachable purse is not unusual, and the same material and attention to finish is what is expected;
(f) the use of (heat seal) binding around the upper lip of the bag is significant. In cross-examination, Mr Smith agreed that he had not seen it before and never used it. In cross-examination he agreed it was a neat elegant solution;
(g) the use of rubber (heat shrink) binding around the rope joins and ends is significant. It is a neat design feature and practical solution to the intended performance. In cross-examination, Mr Smith agreed that he was not familiar with the use of this material as part of a technique for making handbags and agreed it was a very functional and very elegant solution to a problem;
(h) the use of binding around the point where the rope handles pass through the bag - all the way to the top - is significant and distinctive. Ms Beale considered it to be an elegant solution. She stated that in terms of design, it was solving a couple of problems:
It's ensuring that where the hole is, that the rope passes through the bag, won't fray… But also, the continuation of the same binding, aesthetically, is pleasing and clean -
(i) the use of neoprene fabric in combination with the rope handles in the Escape Bag results in departure from bags known as at November 2013. But whereas Ms Beale referred to the Escape Bag as "unique", Mr Smith referred to the combination of features as "an evolution in styling".