Running Head: CURTAILING COPYCAT COUTURE

Curtailing Copycat Couture: The Past, Present, and Future of Intellectual Property

Protection in the Fashion Industry

Annie Sheoran

University of California, Berkeley

College Writing R1A

Curtailing Copycat Couture: The Past, Present, and Future of Intellectual Property

Protection in the Fashion Industry

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In 1984, a husband and a wife started a “cheap-chic” fashion company in a

low-rent area of Los Angeles. Twenty-two years later, in 2006, the company reached $1

billion in revenues. Currently, it operates more than 450 stores in twenty countries,

including a four-level, 90,000-square-foot building equipped with 151 fitting rooms in

New York City's Times Square selling trendy clothing at affordable prices (Billard, 2010).

However, the fast fashion giant, Forever 21, has an interesting twist in its success story:

it has no design team of its own (Casabona, 2007). Instead, it picks up the latest runway

hits, duplicates them, and sells them at a considerably lower price, sometimes even

before the originals hit the market (Ferla, 2007). Surprisingly, Forever 21 is not doing

anything impermissible by the law. While many designers, like Anna Sui and Diane Von

Furstenberg (Wilson, 2007), have filed lawsuits against Forever 21, copycat couture

offers the designers limited legal remedies. This is because the U.S. intellectual

property (IP) law currently does not protect a fashion design but only the logos and

brand names of fashion houses as well as specific fabric prints used on garments

(Blakeley, 2010). This lack of protection for fashion designs is because copyright

protection does not extend to useful articles, which is how the law views clothing.

Fashion is, in other words, not seen as an art form in the 21st century and, thus, one of

the most creative aspects of the fashion industry- the actual design of the garments-

receives no adequate legal protection under the current U.S. legal system.

IP law is vital because the act of imitation is rarely seen as a form of flattery

among the artists of the 21st century. But where do the legal boundaries draw

themselves between what is inspired and copied? This debate surrounding IP protection

in the fashion industry dates back to the early 1900s and is still an ongoing topic on the
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U.S. legislative table. Copying has long been a widespread practice, and the U.S.

fashion industry has had a rich tradition of knocking off European designs from as early

as the inter-world war periods (Sprigman, 2006). For instance, in search of line-for-line

copies of Paris couture originals, 2000 women went to Ohrbach‘s semi-annual fashion

phenomenon (Wade, n.d). The arduous process of traveling to France, measuring each

seam of the original design, and returning to the United States to manufacture copies

from their notes did not stop the U.S. manufacturers from imitating the designs and

soon knockoffs catapulted to fill the U.S. retail market. As this practice of copying

designs spread, manufacturers decided to take action by setting up the Fashion

Originators' Guild of America. Established in 1932, the Guild monitored retailers by

giving red cards to those who sold knockoffs and keeping a record of original designs

(Surowiecki, 2007). The Supreme Court's first fashion design protection case arose in

1941 against the Guild. The Court ruled that the Guild's requirement that designers

should register their original sketches was a restriction of trade. The IP framework in the

fashion industry, which existed in the 1930s during the era of the Fashion Originators'

Guild and currently exists in 2018, is essentially the same. While the current trademark

law can adequately protect logos, names, and other symbols placed on apparel, it does

not extend to the entire piece of apparel. Since 1914, Congress has considered over 70

bills to provide protection against fashion design piracy, but no bill has yet been passed.

Currently, the United States is somewhat of an anomaly in the global fashion

market because it has yet to develop an IP regime that explicitly protects fashion

designs. The U.S. is one of the few remaining markets that is still tolerant towards the

copy-and-sell scheme; the two markets- the European Union and Japan- that along with
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the United States lead the fashion industry have already adopted laws that protect

fashion designs. A large number of Western European countries also have their own

domestic legislation. For example, in France, the “Declaration des droits de l’homme” of

1789 was established when the revolution occurred. It establishes the basic right of a

person to own the creations of his mind. The law extends to fashion design, and reflects

the idea that IP protection is crucial and sacred.

The closest thing the U.S. has is the Lanham Act, which governs federal

trademark law, and defines a trademark as a word or symbol used by a manufacturer to

"identify and distinguish his or her goods . . . from those manufactured or sold by

others.” For example, the law protects a Louis Vuitton purse with the famous LV logo,

but it does not provide enough rights to prevent the actual designs of the purse from

being imitated and sold at a significantly lower price and before the actual designs hit

their markets. Some designers have tried to turn to U.S. patent law, which issues the

utility and design patents, and provides the most robust form of IP protection for

productive inventions and original designs. Design patents, in particular, protect the

"configuration or shape of an article, the surface ornamentation applied to an article, or

the combination of configuration and surface ornamentation (USPTO, 2005).” However,

the rigid criteria, such as presenting a nonobvious improvement over prior art, for patent

qualification have prevented all but a few designers from gaining this option for

protecting fashion designs. This scenario leaves U.S. copyright law as the final and

most logical option for the protection of fashion designs as it protects “original works of

authorship fixed in any tangible medium of expression” (17U.S.C, 2006). Copyright

protection provides the designers effective legal protection for their designs at the
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instant they are drawn on paper and is comparatively quicker and more convenient to

obtain than the trademark and patent protection. But the copyright protection extends

only to the completely decorative elements of the garment, like the patterns or images

on the fabric, and not to the design itself. It excludes "useful articles" that have intrinsic

utilitarian functions but protects "original expressions," which include graphics and text

(Wade, n.d).

This issue is severe for independent designers and small and medium-sized

enterprises (SMEs), who do not have the manufacturing, production, and financial

capabilities of dominant fashion houses and retailers. For instance, when emerging

designer Narciso Rodriguez designed Carolyn Bessette Kennedy's wedding gown,

copiers sold 8 million copies, while Rodriguez was able to sell only forty-five (Paul, n.d).

In the past, original designers maintained their position as "innovators" of new trends

because copyists could begin their widespread imitations only once the original

designers delivered their designs to the market. But maintaining the same position is

nearly impossible in the Internet Age.

The advent of the Internet and the advancement of digital technologies has

dramatically affected the fashion industry and other industries. Fashion copycats may

now easily reproduce designs at low costs by taking digital photographs of fashion items

on the couture runway and transmitting these photographs to overseas factories and

making the imitations available at market-shattering time. In this fast and transparent

fashion world, fashion houses have a new pressure to protect their IP because the line

between design infringement and "pure inspiration" has become even more blurred.
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Thus, this essay proposes that, in order to establish a mutually beneficial

relationship among the fashion house, designer, and retailer and extract the most value

out of each fashion design's IP, IDPPPA be coupled with a licensing business model or

a fashion mark mechanism. The implementation of this robust protection model may

lead to a slight increase on the price tags of the "cheap-chic" outfits at Forever 21. But a

brighter, healthier, and more vigorous future for the fashion industry in which collective

efforts, rather than imitation, fosters the creation of innovative designs is worth the few

extra dollars.

References

Billard, M. (2010, June 24). Park As Long As You Like. N.Y. Times at E6.

Casabona, L. (2007, July 23). Retailer Forever 21 Facing a Slew of Design

Lawsuits, Women’s Wear Daily. ( " Forever 21 does not have its own design

team, and in litigation has said it is simply purchasing the designs created by its

Vendors. "). In a recent interview, a Forever 21 executive noted that the

company has "gotten much better at [its] processes" and is attempting to put

together its own design team, but the specifics of this development have been
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concealed as " a trade secret. "

Ferla, R. (2007, May 10). Faster Fashion, Cheaper Chic. N.Y. Times.

IP definition. In Wikipedia. Retrieved on September 11 from

https://en.wikipedia.org/wiki/Intellectual_property

Paul, J. (n.d). Piracy Paradox is So Last year: Why Design Piracy Prohibition is

the New Black.

Sprigman, C. (2006). The Fashion Industry’s Piracy Paradox.

Surowiecki, J. (2007, September 24). The Piracy Paradox, New Yorker. ("

[American fashion manufacturers] set up the Fashion Originators ['] Guild of

America to monitor retailers and keep track of original designs.... " ) .

USPTO (U.S. Patent And Trademark Office). (2005). A Guide To Filing a Design

Patent Application. Retrieved from

http://www.uspto.gov/web/offices/com/iip/pdf/brochure_05.pdf.

USPTO (U.S. Patent And Trademark Office). (2005). A Guide To Filing a Design

Patent Application. Retrieved from

http://www.uspto.gov/web/offices/com/iip/pdf/brochure_05.pdf.

17 U.S.C. § 102(a). (2006).

Wade, M. (n.d). The Sartorial Dilemma of Knockoffs: Protecting Moral Rights

without Disturbing the Fashion Dynamic.

Wilson, E. (2007, September 4). Before Models Can Turn Around, Knockoffs Fly.
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