Fighting the Fashion Knockoff War

Today, the fashion industry faces the dangers of piracy more than ever. “Fast fashion” retailers offering catwalk and celebrity knockoffs are more successful than ever with the help of the Internet, which provides both an avenue for discovering new looks and immediate access to a market eager to buy them.

While the legality and morality of these copycats is debated, brands investing in creating these looks suffer, as their looks are easily copied and mass-produced at much lower costs, often well before the original look hits the market.

An Industry in Trouble

In the past, designers protected their designs through speed and secrecy. By the time others copied a look, the designer had an edge on capturing the market. But now that first-mover advantage is all but gone.

Designers changed that tradition by inviting the public into their shows, leading to the trend of fashion shows as public events. Today, minutes after designs walk the runway, detailed photos capturing each look are broadcasted. Once public, competitors are able to easily capture and quickly manufacture replicas—and immediately offer these to the mass market at far lower prices.

In the face of this onslaught, brands have had little success fending off piracy due to the limited legal protection available to fashion designs. Fashion design does not qualify as “art” protectable by copyright law, which excludes “useful articles” such as garments and accessories.

Trademark laws provide ample protection where replicas enter counterfeit territory through misuse of the brand and/or logo to pass off the replica as an original. But they aren’t much help when it comes to copies that are virtually identical to an original but sold under a different brand, as confusion is unlikely in such circumstances.

Trade dress laws may provide more protection for the look and feel of a specific design, but it is exceedingly difficult to fend off copycats, because prevailing under trade dress protection requires showing that the trade dress is nonfunctional and serves as a source identifier leading to the likelihood of consumer confusion. This is especially difficult in a trend-heavy industry where trends become yesterday’s news overnight, not allowing for the time required to build “distinctiveness.”

Design Patents to the Rescue?