Trends are traditionally dedicated by the runway. The apparel industry looks to runway designs, haute couture as well as ready-to-wear, for inspiration. Designs are reinterpreted for a wider audience or diluted and made more accessible while being sold at ever-lower prices.

Source: the background article ‘Fashion: from catwalk to closet’

Some runway designs from fashion designers and major fashion houses serve purely as inspiration, other designs are recognizably imitated, and others are imitated 1-on-1 (so-called “knock-offs" or “dupes”). How is this possible? And is it legal to simply copy just like that?

In this article, expert Judith Bussé, a Brussels lawyer specializing in intellectual property (IP), explains the legal principles determined at a European legal perspective.

"Intellectual property (IP) refers to the exclusive rights provided by law to protect creative works, inventions, and other products of human intelligence and creativity. It includes, among other things, copyright, patent law, trademark law, and design law (in EU only), which allow the owners or holders the right to control the use and exploitation of these products and to derive financial benefits from them.

For publication in the United States, this article has been altered by Olivera Medenica of Dunnington Bartholow & Miller, in order to give insight into the legal principles applicable in the United States.

Contents

1. What encourages copying in the fashion industry? How protected are fashion designs?
2. Plagiarism in fashion: how often are catwalk designs and smaller designers copied, and how exactly does that work?
3. Can fashion designers arm themselves against copying behavior? How can smaller self-employed people and designers protect themselves against theft/copycats?

1. What encourages copying in the fashion industry? How protected are fashion designs?

In the fashion industry, fashion companies now release new collections at least four times a year, or more. The sector is competitive: trends and new designs compete for the attention (and of course the money) of the consumer.

Fashion brands therefore regularly, or even continuously, try to bring new styles and designs to the market. And of course, that inspiration must come from somewhere.

But how exactly is the line drawn between inspiring and copying?

Bussé: “The legal principle is freedom of trade and industry. Companies are free to create, inspire and even imitate. The law can only impose restrictions on this freedom, for example by providing (temporary) exclusive rights, such as intellectual property rights, or by prohibiting certain unfair conduct."

"The threshold for copyright protection is particularly low in the European Union, which means that most designs on the catwalk effectively enjoy copyright or design protection here,” says the Brussels’ IP expert. “Yet counterfeiting is encouraged by the lack of clarity, a sufficient scope of protection and the financial investment required to enforce these rights.”

Medenica adds: “The bar for copyright protection in the U.S. is similarly low, however, copyright protection is denied to objects that have an intrinsic utilitarian function (like clothing) – this is called the useful article doctrine in copyright law. Copyright in the U.S. is governed by the Copyright Act of 1976 which grants protection for ‘original works of authorship’. Fashion designs will never get copyright protection in the United States; however, certain elements of the design might. For example, a signature color is not copyrightable. On the other hand, designs imprinted on fabric may be copyrightable if they contain a sufficient amount of creative expression.”

Explanation

1. Clarity:
Each design will have to be viewed on a case-by-case basis and assessed for its originality. This assessment can be very clear and simple in some cases, for example for particularly creative or completely new creations. In most cases, however, the boundary is less clear and concerns specific aspects of the design or an original combination of already existing elements.

In addition, the boundary between “inspiration” and “imitation” is not always clear. This is related to the scope of protection.

2. Scope of protection:

In many cases, copyright does not provide complete protection for fashion designs. A t-shirt always consists of two sleeves, a neckline and a body. No protection can therefore be claimed for this.

“The U.S. Supreme Court recently addressed the question of copyright protection for fashion designs in Star Athletica v. Varsity Brands, both rivaling cheerleading uniform manufacturers,” adds Medenica. “The Court held that copyright affords ‘no right to prohibit any person from manufacturing clothing of identical shape, cut, and dimensions’. The specific design of these elements, on the other hand, is protectable to the extent it is separable from the useful article and if it would be a protectible pictorial, graphical, or sculptural work in its own. The Court in Star Athletica held that ‘two-dimensional designs appearing on the surface of clothing, including combinations, positionings, and arrangements of shapes, colors, lines, etc., are protectable by copyright.’ As clothing is functional, it effectively means that the shape and design do not receive protection in those jurisdictions, like the US, that have the useful article doctrine.”

3. Financial investment:
Finally, the financial investment is also a barrier to enforcing the rights in a particular design. Court proceedings are expensive and given how quickly fashion trends evolve, the financial and time investment is not always commensurate with the value that can be achieved.

Medenica: “In the U.S., a 2017 AIPLA report states that, ‘the average cost of litigating a copyright infringement case in federal court from pre-trial through the appeals process is $278,000, and some cases will take over a year to litigate’. Notably, Congress has been putting effort towards speeding up this process, in part by passing the CASE Act. Moreover, the outcome is never guaranteed. In the absence of a strong hand or sufficient deterrent mechanism, some fast fashion chains simply ignore intellectual property rights.”

2. Plagiarism in fashion: how often are catwalk designs and smaller designers copied, and how exactly does that work?

"Since the rise of fast fashion companies, the consistent and sometimes even systemic form of counterfeiting has also grown,” states Bussé. Dutch fashion journalist Milou van Rossum put it this way in 2020 when speaking to Nieuwsuur (News Hour)/NOS: "Fashion chains such as H&M and Zara look to designers' collections and imitate them, but often so quickly that these designers were more likely to be in the stores of those chains before the designers stores themselves.”

Source: The NOS/Nieuwsuur article 'Unsold 'clothing mountains' due to corona, but also a call for a sustainable restart' by Ronja Hijmans, August 4, 2020. Nieuwsuur (News Hours) provides in-depth reporting for the Dutch government news broadcasters.

There are countless examples in Europe as well as in the United States. Here are some European examples from the original publication.

For example, according to Gucci, Forever21 infringed its trademark rights by selling clothing bearing the characteristic stripe marks of the Italian fashion house. “Or the white jumpsuit from Balmain that was marketed in a cheaper version by Nasty Gal or the minimalist pieces from Yeezy that were available as quasi-identical pieces in identical colors in Zara stores,” Bussé adds.

Mango was recently sentenced by the Paris Court of Appeal to pay 2 million euros in damages for the systemic counterfeiting of Céline designs, Bussé continues. “The judge did not base his decision on copyright, design law or trademark law, but on the unfairness of market practices and Mango's parasitism, which time and again resulted in various products that were clearly and strongly “inspired” by Céline designs.”

Smaller designers are also being copied more and more, reports the Brussels lawyer. “Given the limited resources of these smaller designers, these practices do not always result in a legal dispute. This often leads to discussions in the media about plagiarism and ethics in the fashion industry or a call for stricter regulations and enforcement of copyrights in the fashion industry.”

Dutch designer Toos Franken, for example, sued Zara years ago for copying one of her designs. “Some other well-known cases are those of the Greek fashion designer Mary Katrantzou against discounter Primark in 2012, the Scottish Mati Ventrillon in 2015 for his sweater design in a Gucci collection, Walter Van Beirendonck against Virgil Abloh (Louis Vuitton) in 2020 for some jackets he made in 2016, and Jurgi Persoons against Haider Ackermann for Jean Paul Gaultier in February 2023,” Bussé summarizes. “And a very recent one: a few months ago, the Swedish fashion chain H&M brought a cross-over/dupe of the characteristic caps of children's clothing brand Caroline Bosmans onto the market for a bargain price.”

“It illustrates the challenges designers and brands face in protecting their creative efforts against counterfeiting,” Bussé points out.

3. Can fashion designers protect themselves against copying behavior?

“It is difficult to give a black-and-white answer to this question,” says Bussé. “After all, the fashion sector is extremely competitive and there are many large companies with disproportionate resources compared to smaller designers. Moreover, it is not always easy to objectively define the scope of protection of a particular intellectual property right in relation to previous designs and (seasonal) trends. In combination with the high costs and efforts often associated with lawsuits, it goes without saying that no strategy offers a guarantee against copying behavior.”

Defense strategies against copying behavior in the fashion industry

To better protect a design against imitation or copying, there are some measures that fashion designers can take. The Brussels lawyer tips:

1) Document the design process, including the creative choices made, the person who designed the piece, the date the piece was designed, the aspects of the design that are original and involve free and creative choices compared to what resulted then found on the market. This documentation will be necessary to meet the burden of proof when action is taken against the counterfeiting of the piece.

2) Develop a registration strategy: make sure you register everything that you can, keeping in mind efficiency.

• It goes without saying that the brand name and/or logo should be registered as a trademark. “In order to qualify for a trademark in both EU and U.S. law, a mark must be distinctive, nonfunctional, and used in commerce,” the US council adds here.
• In addition, several other characteristic parts of the piece or the entire line can also be registered as a trademark, for example a pattern, interplay of lines, color combination, design, or the specific position of a certain part.
• Finally, for certain items or parts of items, it may be interesting to consider an effective design registration. Medenica: “Such registration is not expensive or complex and can provide additional protection for elements of a design that are new and have their own distinctive character.”

In general, it is of course only useful to register if the cost is proportionate to the value of the protection and if you intend to enforce registration against third parties if they violate your rights.

“It is important to remember that copyright and trademark are not your only options for protection in the fashion industry,” US counsel Medenica emphasizes. “The United States offers another form of protection through what is called a ‘design patent’, Design patents protect what an invention or creative work looks like its shape and configuration, and any specific ornamentation. Design patents may provide legal protection to visual qualities of a manufactured item, such as handbags, shoes, jewelry, and in some limited circumstances, even clothing. . To qualify for a design patent, a design must be ‘novel, original, ornamental, and applied to a tangible, man-made object’. Design patents can be obtained by filing an application with the USPTO and last 15 years from the grant date, making them beneficial in an ever-changing trendy industry like fashion.”

3) The most persistent party wins: if you receive little response from the infringing fashion company in the case of counterfeiting, the next step is a formal notice of default and then filing a lawsuit to obtain a hearing and, hopefully, compensation for the infringements committed. Such matters are often expensive and can take time but can be necessary and rewarding if successful.

Finally

According to Bussé, it is advisable to have realistic expectations. “Protection against counterfeiting is becoming increasingly difficult in this globalized world. Copyrights are - national rights and other intellectual property rights are not the same in every country. Moreover, taking action abroad is often extra complicated and less financially interesting. Chinese giants such as Shein and Temu therefore do not shy away from 'inspiring' original designs or even completely copying them.”

This article was originally published on FashionUnited.be with the (legal) principles determined at European level. For publication at FashionUnited.com this article has been altered with the US rules - input from American attorney Olivera Medenica of Dunnington Bartholow & Miller

Sources:
- Input from Judith Bussé, a Brussels-based lawyer specializing in Intellectual Property Law and manager of PIVOT law. She's an expert in her field with nearly a decade of work experience and assisting both larger and smaller designers with their questions on intellectual property law or counterfeiting issues, in January 2024.
- The FashionUnited archive
- Input from American attorney Olivera Medenica of Dunnington Bartholow & Miller, in March 2024.
- World Trademark Review ‘Protecting and enforcing design rights: United States’, 24 November 2016
- Copyright Alliance ‘Can You Copyright Fashion Designs?’
- Thomson Reuters blog ‘Copyright litigation 101’, 16 December 2022
- TheStreet ‘Global Fashion Brand Under Fire for Allegedly Copying Designs’, 26 January 2023
- Investopedia ‘Design Patent: Definition, How It Works, Examples’, by Will Kenton, updated January 11, 2024
- PatentTrademarkBlog 'Can fashion and clothing be protected with design patents?'