Fast fashion companies have built their brands on replicating designers’ work and selling their items at a fraction of the price. Zara, H&M and Fashion Nova, to name a few, have been accused of copying designs, sometimes mere hours after they are revealed on the catwalk.
The latest designer to fall to peril to this practice is Versace, which is engaged in ongoing lawsuits with Fashion Nova. Versace has initiated legal action for copyright, trademark and trade dress infringement. One item in question is the iconic jungle-print dress which was worn by Jennifer Lopez in 2000 and is credited for inspiring the idea for Google Images. Fashion Nova is selling a nearly identical copy of the dress.
Luxury brands are not the only ones at risk of being knocked off. Fast fashion companies have been known to copy small, independent designers. Zara was accused by Tuesday Bassen, a Los Angeles-based designer, for allegedly infringing her designs in 2016. Many of these smaller designers may not have the resources to file a multi-million-dollar lawsuit.
While this seems legally and morally wrong, fast fashion companies are often within their legal rights to do what they are doing. There is seemingly a gap in the law when it comes to protecting fashion designs.
When an artist or author wishes to protect their original painting or novel from replication, they will rely on copyright law. In Canada, the Copyright Act protects original works and affords automatic protection against infringement for the duration of the author’s life plus 50 years, with no registration necessary.
Despite fashion’s original and creative nature, ultimately, copyright law does not provide protection for ‘a design applied to a useful article’. The law has distinguished clothing and accessories as useful/ functional because they serve the purpose of covering our bodies and allowing us to carry things. A common counter-argument is that some elements of clothing are not functional at all; some might even be impractical. For example, a strap on a dress may be used to hold the dress up, but if there are multiple straps, some hanging loosely off the dress, they cannot all serve a functional purpose. The wording of the Act leaves a designer with great uncertainty over what is (and is not) protected under Copyright Law.
Further, Section 64 of the Copyright Act deems that copyright in designs applied to useful articles is not enforceable after the rights holder has manufactured this item over 50 times. Therefore, even if the designer has managed to protect their work through copyright, this ‘50+1’ rule stands in the way of commercially manufacturing this item.
In Canada, the overall commercial image of a product can be protected under the Trademarks Act as a ‘sign’. A sign functions as a trademark if its purpose is to distinguish the goods from others. In order to qualify for protection under this Act, the applicant must prove acquired distinctiveness throughout Canada. This threshold for acquiring distinctiveness amongst consumers is very high. Few fashion designers have been successful in protecting their work through the Trademarks Act. The item must be extremely recognizable; thus, it may be possible to protect one iconic item in this way, but an entire fashion line would not acquire the necessary distinctiveness to afford protection.
Canadian law affords another avenue to protect fashion designs. The Industrial Designs Act protects a functional product’s unique appearance. The applicant must register their design within 12 months of publication. Once registered under this Act, the creator can mass-produce the item while retaining protection against un-authorized replications.
An industrial design registration could be a powerful IP tool for fashion designers because it is not subject to the 50-item limit imposed by the Copyright Act. However, very few clothing and accessory designs have been registered under this Act and none have been the subject of reported litigation, and for these reasons it is difficult to discern whether registration under this Act provides adequate protection against fashion design infringement. Further, industrial design registrations only give the creator an exclusive right in Canada. The majority of Canadian designers sell their products internationally, in which an industrial design registration would not protect their work.
Canada recently acceded to the Hague System, an international treaty for industrial designs. A single Hague System application allows for protection in over 60 different countries. However, the World Intellectual Property Office notes that very few fashion designs are registered under the Hague System, and thus, the problem of uncertainty prevails.
What are designers doing?
Faced with potential gaps in legal protection, and high costs and risks associated with legal enforcement, how are designers attempting to protect their work?
Tuesday Bassen offers a success story. The designer’s first attempt to have Zara’s allegedly infringing products discontinued through a cease and desist letter was dismissed by the company. However, the designer used her following on Instagram to post side-by-side comparisons of her work with Zara’s knock-offs. Other independent designers joined in accusing Zara of copying their designs leading to criticism of the brand from the public. Eventually, Zara removed the infringing items from shelves.
Other designers are using third-party retailers’ own takedown processes. Many designers sell their products on Amazon or eBay, both of which have processes by which infringement can be reported and the associated products taken down. However, the designer must have intellectual property rights to begin with, and as mentioned due to the gap in the law, many fashion designs fall outside of the scope of copyright and trademark protection.
Some experts have historically claiming that fast fashion companies merely increase the speed at which the average consumer can access the latest trends at an affordable price. However, these arguments were typically advanced before smartphone cameras became ubiquitous, when copyists would sneak into a fashion show and sketch designs from memory. Today, anyone can access digital images of the latest designs, seconds after they have walked down the runway, resulting in fast fashion retailers selling imitations prior to the originals even hitting the shop floor.
Due to sheer speed of production, and the uncertainty and risks associated with legal recourse, protecting designs from copycats will continue to be an uphill battle for most designers.