CATCH ME IF YOU CAN: Independent Designers’ Fight Against Copycat Fast Fashion
One of the most common stories we hear about fast fashion brands and intellectual property has to do with copying luxury brands. We have heard the detrimental effect that copycats have on the luxury brand’s reputation and bottom line, along with the collateral effect on its employees. Lately, a new story has sprung. It seems fast fashion has been double dipping in both luxury brands and independent designers for “inspiration”.
Fashion giants, like Zara, Nasty Gal, Forever 21, and H&M, have recently come under fire for their starkly similar designs to independent designers. However, these indie designers are fighting back with copyright and trade dress infringement lawsuits.
In July 2016, L.A. designer, Tuesday Bassen contacted Zara regarding the similarities of their products, but the brand’s lawyers wrote that Bassen’s designs lacked distinctiveness. Zara is arguing that Bassen’s designs do not achieve secondary meaning, or distinctiveness, that would allow consumers to immediately associate her designs with her brand in the way consumers associate red soles with Louboutin. Thus, limiting her trade dress protection.
More recently, Francesca’s Collections has been named in a copyright and trade dress infringement class action lawsuit regarding enamel pins that the independent artists claim are replicas of their original work. The plaintiffs are seeking immediate and permanent injunctions, along with monetary damages.2
It is not only fast fashion that is being “heavily inspired”. Chanel has been shamed for copying Pamela Love and Mati Ventrillon, Zuhair Murad has borrowed from Prabal Gurung, Versace made t-shirts like KESH, and Michael Kors designed a dress that replicated Cushnie et Ochs.4
Currently, fashion designs are not protected under the U.S. Copyright Act because clothing is considered a functional item. However, non-functional aspects like print, pattern, and color arrangement are protectable ONLY IF the “design incorporates pictorial, graphic, or sculptural features that can be identified as physically or conceptually separate from the functional aspect of the article.”5 They are a work of art independent from the functionality. For example, consider the Varsity v. Star Athletica case where the design on the cheerleader uniforms were considered separate from the uniform itself and therefore the design was subject to protection.
The Lanham Act largely governs trademark protection. Trademarks only protect logos, brand marks, and other identifying symbols of the brand. The Act introduced trade dress protection for the visual characteristics of a product if those characteristics signal to consumers the source of the product and are non-functional.6 For example, consider the famous Christian Louboutin v. Yves Saint Laurent case where the U.S. Court of Appeals for the Second Circuit held that Louboutin’s red soles had distinctiveness that provided secondary meaning to the consumer.
Due to the limited protection afforded to fashion designers, it is easy to see how retailers can create similar products without much consequence. Fast fashion brands are not creating exact replicas with the use of prints or logos, however, they are using shapes and aesthetics that convey the looks of luxury fashion brands. Fast fashion also has very deep pockets. Forever 21 has settled over fifty different claims dealing with the stealing of prints and designs from designers, and these companies “view copyright infringements as an unavoidable and overall profitable strategy for their business – they earn more money by producing and selling copied designs than any legal loss or public discord that may result from their infringement.”7
Given this tumultuous environment, more protection is necessary for designers. In 2012, the Innovative Design Protection Act was introduced in the United States Senate.8 It seeks to amend the Copyright Act by expanding the scope of copyright protection to include original and unique fashion designs. The proposed legislation has not yet passed. Until then, small designers must remain vigilant in monitoring and addressing any unauthorized use of their designs.
Image posted by Tuesday Bassen on her Instagram account.↩
Aaberg, et al. v. Francesca’s Collections, Inc., et al. (1:17-cv-00115), New York Southern District Court. ↩
Lanham Trademark Act 15 U.S.C.↩