A few months ago, clothing giant H&M sued fellow behemoth Forever 21, alleging that Forever 21 was infringing their intellectual property (IP) by copying a tote bag with a print of palm trees and text reading “Beach Please.” While this tote bag is amusing, experts in the realm of fashion law found the irony behind the suit itself even more entertaining.
Both H&M and Forever 21 are infamous for taking “inspiration” from other designers. If it wasn’t clear from the quotes, by inspiration I mean wholesale copying of designs. Five years ago, Forever 21 had already been sued for allegedly stealing the work of other designers over 50 times. While Forever 21 has continued to be sued for infringing designs over the years, they have yet to lose a case. They’ve settled many of the suits, with only one case ever making it to an actual trial.
HM and Forever 21 may have reputation for “permanently borrowing” the designs of others, but they are far from alone in this strategy. The business model of reproducing high fashion quickly and on the cheap—often known as fast fashion—is one that took the market by storm over the last decade. What’s more, HM and Forever 21 are mere scions before the king of fashion copying that is Zara—a company known for its blazing speed at translating runway designs to more affordable imitations. While these companies arguably make a business of copying, they are not alone. There are certainly a number of cases where high-end designers are so “inspired” by another designer’s work as to reach the point of imitation.
Why is copying so widespread in fashion? How are all these companies getting away with this? The answer lies in the weak IP protection provided to fashion in the U.S.
How IP Covers What Covers You
U.S. IP law does not really meet the needs of the fast moving fashion industry. There are several means of protection that are available to fashion designers: copyright, design patents, trademark, and trade dress. However, each of these methods of protection are arguably an imperfect solution for fashion designers.
Copyright does not provide protection to useful articles. A “useful article” is an object having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. The theory behind this is that useful articles are properly the realm of patent. Much to the chagrin of clothing designers everywhere, the Copyright Office explicitly uses clothing as an example of a useful article.
While copyright is often not available for the design of clothing, design patent is an available alternative. A designer can receive design patent protection against copying for a 15-year duration where their designs are new and unique. Unlike normal patents, design patents aren’t published until granted so that others can’t copy your design.
However, design patent doesn’t fit well with the fast moving world of fashion. Copyright protection is quick to acquire, cheap, and long-lasting. Design patents cost thousands of dollars and take around 1-2 years to receive. Often, by the time a designer receives a design patent, the trend they are seeking to protect has long since passed. This being said, where a fashion house plans for a style to stick around, design patents are ideal.
Trademark protects an identifying logo or mark on clothing, preventing others from using the same mark or a similar mark where the mark is confusingly similar to consumers. Trademark dilution protects a particularly famous mark from being used in a way lessens the uniqueness of the mark or tarnishes its brand, regardless of whether there is any confusion.
The strength of a trademark is tied, in large part, to how well known the mark is. This is true of both regular trademark claims (a strong mark is better at preventing similar marks) and dilution. Trademark provides substantial protection for established fashion houses. It will always protect against exact counterfeits, and sometimes can be useful where a knockoff is confusing. However, it is less useful for newer designers. This being said, designers can record a trademark and name with U.S. customs. This works to help protect against importation of infringing products, customs will sometimes seize products that would infringe.
Trade dress is a subsection of trademark law that protects distinctive, non-functional aspects of a brand’s products that identify the product to the public. An example of this in fashion is the red bottoms to Louboutin shoes. It again requires the aspect of the brands product to be recognizable by the public and thus is of less use to less-established designers.
There have been several attempts on the part of the fashion industry to introduce legislation expanding IP rights to fashion in the U.S.—all have failed to become law. The EU, on the other hand, grants three-year protection with an option for a 25-year extension to fashion designs upon making the design available to the public.
The Knockoff Arguments
A large portion of those buying from companies that copy from the more expensive fashion houses are fully aware that they are buying copied fashion—that’s why they want it. These companies provide the styles that many people simply can’t afford. So if the people buying from companies providing knockoffs couldn’t afford to buy similar fashions from the high-end designers they are taken from, are those designers really losing a sale? Do these high-end designers need the greater protection that they seek or are these knockoffs actually good for business?
Those who argue that expanding protection is unnecessary contend that fast fashion is actually good for high-fashion. Exclusivity is a large part of the value of high-end fashion and knockoffs often signify the desirability of a trend then end the trend by eliminating its exclusivity. This pushes sales on new designs at high price points by allowing high-end designers to release more frequent limited runs of expensive fashions. The goal of IP is to encourage invention and the current state of fashion—quickly cycling trends leading designers to rapidly come up with the new big thing—advances that goal.
There is a flip side to these arguments for cheap, accessible fashion. There are issues with fast-fashion beyond infringement, labor and environmental concerns. Many argue that the lower quality of the knockoff offerings leaves shoppers buying replacement clothes so much more often that the price difference becomes moot. Would you rather buy one high quality item or a rotation of cheaper replacements? What’s more, do we want to force the best and brightest in a field “churning out” designs to keep up with knockoffs? This seems unlikely to be conducive to the highest quality designs possible.
If copying was destroying the market for high fashion, you’d expect to see the cost of their products go down to allow them to compete. The opposite is true, with high fashion prices continuing to rise. What’s more, if the lack of U.S. protections were fatal to fashion, you’d expect the European fashion market to drastically outperform the U.S. Once again, this is not the case, as both markets are booming to the tune of hundreds of billions a year.
Perhaps an approach similar to the EU could be valuable. The current state of IP is especially harsh to designers just entering the field of fashion. However, it seems unlikely that sweeping change to copyright law would truly be in society’s best interest. Fast-fashion does have its issues, but IP is not the problem that needs to be addressed.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law