Plagiarism in fashion: Why is there so much counterfeiting, and is it even allowed?

Some runway designs from fashion designers and major fashion houses purely serve as inspiration. Other designs are immediately recognized as being copied, while others are copied so precisely that they're often 1-on-1 (so-called "knock-offs" or "dupes"). How is this possible? Is it legally possible to copy another design just like that?

Contents

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

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

Within the industry, fashion companies launch new collections at least four times a year, or more. The sector is highly competitive: new designs hopefully become trends that catch consumers' attention (and get them to open their wallets).

This is why fashion brands regularly, or even continuously, introduce new styles and designs to the market. Of course, the inspiration to constantly make these new garments has to come from somewhere..

But where do you draw the line between inspiration 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, meaning that most designs on the runway effectively maintain copyright or design protection," says the IP expert. "Yet counterfeiting is encouraged or promoted by the lack of clarity, a sufficient scope of protection, and the financial investment required to enforce these rights."

Explanation

1. Clarity:
There is no copyright register in Europe. Also unregistered design law (a law created explicitly for the fashion sector) is, as the name suggests, is not registered. Each design will therefore have to be examined on a case-by-case basis and assessed for its originality (for copyright) or the novelty and individual character (for design law). Sometimes, the assessment can be very clear and simple, for example, for creative or completely new creations. In most cases, however, the threshold is less clear and concerns specific aspects of the design or an original combination of already existing elements, making it all the more difficult.

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

2. Scope of Protection:
Copyright does not provide full protection for fashion designs in many cases. A t-shirt always consists of two sleeves, a neckline, and a body. No protection can, therefore, be claimed for this. On the other hand, the specific design of these elements is protectable. Although differences are sometimes minimal, their combination can give a completely different visual and aesthetic impression. In addition, clothing or certain parts of clothing are considered functional in some countries, which means that the shape and design do not always receive as strong protection as, for example, literary or musical works.

3. Financial investment:
Lastly, financial investment is also a barrier for some to enforcing the rights of 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 amount that can be achieved. Moreover, the outcome is never guaranteed. In the absence of a strong hand or sufficient deterrent mechanism, some fast fashion chains choose to simply ignore intellectual property rights.

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

There are countless examples. For example, according to Gucci, the fast fashion chain Forever 21 infringed its trademark rights by producing and selling clothing bearing the characteristic stripe marks of the Italian fashion house.. "Or the iconic white jumpsuit from Balmain that Nasty Gal took and made a cheaper version of or the minimalist pieces from Yeezy that were available as quasi-identical pieces in identical colors in Zara stores," adds Bussé.

Mango was recently sentenced by the Paris Court of Appeal and has 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.

For example, Dutch designer Toos Franken 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, Scottish designer Mati Ventrillon in 2015 against Gucci for copying his sweater design in a 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," sums up Busse. "A very recent one: Swedish fast fashion chain H&M sold a copy/dupe of the signature cap from childrenswear brand Caroline Bosmans for a bargain price a few months ago."

“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 industry is extremely competitive, and there are a lot of large companies with disproportionate resources compared to smaller designers. Moreover, it is not always easy to objectively delineate the scope of protection of a particular intellectual property right with respect to previous designs and (seasonal) trends. Combined with the high costs and efforts often associated with litigation, it goes without saying that no strategy offers a guarantee against copycat 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. Here are some tips from the Brussels lawyer:

1) Document the entire design process, including all 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 has been done to date 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 what you can and what is useful and efficient to register.

• It goes without saying that the brand name and/or logo is registered as a trademark.
• In addition, several other characteristic parts of the piece or the complete line can also be registered as a trademark, for example, a pattern, lines, color combination, design, or the specific position of a certain part on the item.
• In addition, you should also consider whether you can appeal to unregistered design rights, as your design is new and has its own character. Again, the design and publication dates must be properly tracked.
• Lastly, for certain pieces or parts of pieces, it may be of interest to consider effective design registration. Such registration is not expensive or complex and can provide additional protection for new and distinctive design elements.

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

3) Those who persevere win: in case you get little to no 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 get a hearing and compensation for the infringements committed. Such cases tend to be costly and can take time. Therefore, engaging with good counsel and clearly stating your expectations and concerns is important.

In conclusion

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

This article was originally published on FashionUnited.be. These (legal) principles are determined at European level.

Sources:
- Input from Judith Bussé, a Brussels-based lawyer specializing in Intellectual Property Law and owner 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.
- The FashionUnited archive (mostly linked in the article text).