The Role of Intellectual Property Law in combatting Copycatting in the Fashion Industry

AUTHOR: Tabitha Reji

Year & course : BBA LLB,  2017-2022

College: Symbiosis Law School, Pune

Abstract

This Research Paper examines the wildly under-explored presence and role, or lack there-of, of Intellectual property rights concerning aspects such as the theory of personality rights or moral rights in the context of protecting art and design. Revenue in the fashion segment alone is projected to be at US$664.474 Million in 2020, making this growing trend of copycatting rather alarming. It is mainly a threat for smaller designers who often don’t even have the access or means to pursue legal action. Traditional Intellectual Property Laws, particularly in the U.S. and E.U., are not advanced enough to take into consideration the growing trends of copycatting in the Design industry. While designers in the United States have gone without protection, the fashion industry’s European counterparts have enjoyed intellectual property benefits under an I.P. system that generally offers broader protections to applied and utilitarian arts and weighs the creative’s moral interest personality more heavily.

Key Words: Copyright Law, Fashion Industry, Copycatting, Personality Rights

Introduction

The common conception or upholding celebrities and public figures to a “larger than life. “Status is indeed an advantage for brands that use endorsements to push their products in the market. Often products are known by the association to these public figures. It may be in the form of affordable, daily-use products such as an energy drink endorsed by a famous sportsperson or in the way of high-end, luxury products such as gold ornaments or watches endorsed by actors, musicians, etc.

Celebrity endorsements of particular products may make or break their market value and general perception. Hence, it becomes vital to study these endorsements and what it means to attach a specific name to such products, and ultimately what it means to the parties involved, i.e., the brand, the competitor, the celebrity, and the customer.

In light of these advancements, it becomes essential to preserve these public figures’ Rights and reputation, their symbolic representation, and their work.

Fashion trends are constantly changing and older styles are often seen to come back to the market, this Research also poses the question of whether in a dynamic industry like fashion, copycatting could enhance creativity rather than hindering it. The Piracy Paradox suggests that copycatting enhances the fashion industry. It focuses on determining how the fashion industry has continued to thrive and innovate despite intellectual property protection. Yet, at points, its authors have ventured beyond mere explanation to posit that intellectual property protections’ current balance is optimal.

From a business perspective, “knock-off” products of large designers have always existed in the market; the sheer popularity of these brands and the financial status of the customer base that they cater to ensure that these products do not affect their Sales to a noticeable extent. Despite this, the growing trend of large industries like H&M, Forever 21, and Shein profiting off of stolen designs by smaller Designers damages their profitability. It also makes it more difficult for them to enter into and adequately compete in the market.

In this context, the traditional U.S. and E.U. Intellectual Property Laws have been unable to protect smaller designers’ rights from being infringed.

Personality Rights

The Right of publicity, which is sometimes referred to as personality rights, is the Right of a private individual to control the commercial use of his/her identity, such as their name, image, likeness, or other unequivocal identifiers. Primarily, Personality rights consist of two types of rights:

1. The right to publicity, or the right to protect one’s image and likeness from being commercially exploited without permission or contractual compensation, is comparable to the right to use a trademark. Moreover, the individual’s right to publicity may outlive him or her.

2. On the other hand, the Right to privacy refers to the Right to be undisturbed or ‘left alone’ and not have one’s personality represented in a public platform without prior permission. This Right applies only to those who are “famous” or have some fame associated with his/her persona, which may be capable of being commercially exploited. A person’s ‘persona’ may include anything ranging from his/her name, photographs, signature, voice, or anything else that may be distinguished as their own.[1]

For instance, in Robyn Rihanna Fenty v.  Arcadia Group Brands Ltd. (T/A Topshop)[2], the popular U.K. brand Top Shop used the famous singer’s pictures to promote their T-shirts line without prior permission from her. She contended that the sale of this t-shirt without her permission infringed her rights on the grounds of passing off as the public would most likely assume that the line is part of the singer’s merchandise. While deciding the case, Justice Birss stated that a significant number of buyers were likely duped into purchasing the T-shirt under the mistaken belief that the singer had authorised it.This case sets the precedent that the public needs to identify or associate an identity to a person to initiate a ‘passing off’ suit. The Right of publicity does not come into existence if such an association cannot be established.

The Copycat Economy

Design Piracy or “knocking-off” is a long-standing trend in the fashion industry, maybe even a flattery form. Designers, however, consider knocking off in a light similar to highway robbery. They invest a large amount of time and resources developing new designs only to find other manufacturers to copy it. While the notions of justice and fairness suggest that designers should be compensated and protected by law, design piracy has rarely come underweight from a legal perspective.

The biggest question of law, in this regard, is whether or not these designs can be patented. Copyright law does not provide exclusive rights for inherently useful items. This means that while painting or a song, which are also artistic works, can be copyright protected, an item of clothing or a shoe or a bag cannot, as it has a practical use. This allows fashion outlets to duplicate high-end designers’ duplicate designs, especially if the garments do not distinguish logos, brand names, or original prints.

What remains is whether or not copycat designs harm the design labels or further improve the creative process. While large fashion houses may still retain their customer base, as they are primarily unlikely to purchase these products from fast fashion labels, many designers find their copied designs gain popularity, despite being able to profit from the same.

Fashion designers often take inspiration from existing designs to create something new and unique on the flip side. We often see old trends being recycled and re-introduced in the market, and this is a practice that has existed time immemorial. In that sense, it may be learned that copycatting has hardly any effect on changing trends, with some even arguing that it may be boosting the fashion industry.

However, it does raise a question as to if and how a designer can protect their designs from being wrongfully copied, which will be dealt in the next section.

Intellectual Property Law in the United States

There has only been limited protection in the U.S. I.P. law [3] for fashion design. [4] Accordingly, U.S. I.P. laws distinguish a distinction between works of art that may be eligible for protection by copyright and ‘useful articles,” which may not.” The U.S. Copyright Act does not protect designs as they are deemed functional items. But if there are some aspects of design, including “pictorial, graphic, or sculptural features that can be recognized separately from, and are capable of existing independently of, the article’s utilitarian characteristics may receive protection if they meet the test of “conceptual separability”.[5] In addition to statutory law, U.S. courts have battled the extension of copyright protection to fashion items,[6], defining that the creative aspects of clothing cannot be separated from general functionality.[7]

The most operational I.P. protection is the Trademark law [8], which offers to safeguard distinctive logos or trade names to the extent they work to find the product’s source. A word, name, symbol, or device [9] may acquire trademark protection in the standard course of commerce, and once acquired, is registered with the United States Patent and Trademark Office. Because of the struggle in securing design protection [10], fashion designers often depend on labels, which may have trademark protection, [11] to protect their products. However, color [12] design or packaging may also obtain trademark protection.[13] Further, trademark laws protect the so-called “trade dress” when the visual aspects signal its source but are not efficient. In Walmart Stores v. Samara Brothers, the U.S. Supreme Court accepted two categories of “trade dress”: product design and product packaging protection. [14] A particular problem associated with trade dress is the prerequisite that the public can recognize an item as a particular fashion house’s work without referring to its label. Such standard reduces this protection inapplicable for most designs as they rarely achieve the required “iconic recognition” to attain trade dress status. The spite of shoe fashionistas around the world,[15] Christian Louboutin’s signature “lacquered red sole” [16] provides a predominantly elegant example of trade dress.

Patent law, being more limited than trademark, offers protection for functional fashion designs or design elements that are substantively innovative and touch the requirements for patenting an invention. The U.S. Patent Act permits protection for designs for shoes, handbags, jewelry, and other items through attaining a design patent valid for fifteen years.[17] A design patent protects the concept of the product, not the product itself. It must be novel and non-functional, meaning that the deemed functional clothing is not eligible for patent protection.[18] Although some scholars may discount the significance of design patents, they, on the other hand, offer a means for the protection of specific articles of fashion.

Intellectual Property Law in the European Union

Compared to the minimal protection under U.S. law, European law offers more excellent protection at the national and European Union levels.[19] The E.U. Designs Protection Directive[20] provides a governing structure to protect “designs by registration” in the European Union.[21] The Directive states design as “the exterior of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its adornment.[22] To qualify for protection, a design must have “the part, once it has been incorporated into the complex product, remains visible during normal use of the latter”. Those features of the part fulfill in themselves the requirements as to original and individual character. Besides, E.U. Regulation 6/2002 offers protection for registered rights for five years with a possible renewal for twenty-five years and unregistered rights for three years.[23] Furthermore, Directive 2004/48/EC requires the Member States to adopt “measures, procedures, and remedies essential to ensure the enforcement of the intellectual property rights [24] and provides certain rights to parties who reasonably show infringement of their I.P. rights to prevent such goods from “entry into or association within the channels of commerce.  Council Regulation 1383/2003 offers a legal mechanism for custom authorities to take action on goods that may infringe I.P. rights.[25] In addition to E.U. protection, European national I.P. laws, mostly in the United Kingdom,[26] France,[27] Italy, Germany, and the Netherlands[30] provide rigorous surplus protection. With the 2016 referendum on the U.K.’s membership in the E.U., there are likely to be significant legal developments in the U.K. as it redefies its legal relationship with the body of E.U. law. In any case, the U.K. will be subject to E.U. law until it officially leaves the E.U., a process triggered by the Conservative Government’s entreaty of Article 50 of the Lisbon Treaty in March 2017.

Conclusion

Despite the various legislation, the fashion industry seems to suffer from piracy persistently, referencing, and homaging from the essential and operative fashion industry. Although the author’s moral rights dispute regarding his creations, the fashion industry’s response is its stimuli to a market that has lasted for so long without an I.P. regime with its financial ability to tolerate the acts of piracy.

It is reasonably evident that copying does not reduce the incentives for fashion designers to create fashion designs. But even if designers’ incentives to develop are affected, copying may still negatively distress the personhood interests that fashion designers invest in their creations. Whether fashion designers feel that their designs symbolize personhood interests is an open question.  In a sense, blatant ripping-off seems to display a sense of entitlement to a private part of the artist’s soul that is not, as it were, up for grabs. A better solution, and one that shows some promise, is to begin to revise the consumers’ values, themselves, so that copying no longer becomes profitable at all. Through the power of Twitter and Facebook, norms about copying that are infused in consumers can quickly become self-enforcing and self-perpetuating without the need for top-down, planned action by designers. It is the last method that eventually offers the most promise for the protection of fashion designers’ personhood interests, if they really exist at all.

Ultimately, this paper argues that intellectual property laws in the American fashion industry need to be reshaped to provide ample protection for designers, while allowing fair and timely competition. Intellectual property protections, such as limited copyrights and short-term design patents, should be introduced in the United States because fashion designers deserve to work in a legal environment that makes the most of their innovative capacity; provides an atmosphere conducive to creativity; and sustains a work setting that values the products of their effort, mind, and intelligence.

Bibliography

[1] Willis, J. W, Foundations of Qualitative Research: Interpretive and Critical Approaches (first published in 2007, Sage Publications) 218

[2] Bell, J., Doing Your Research Project: A Guide for First-Time Researchers (Sixth edition, Open University Press, 2014) 151

 

[3] Fashion Guild v. Trade Comm’n, 312 U.S. 457 (1941); Millinery Creators’ Guild Inc., v. Fed. Trade Comm’n, 312 U.S. 469 (1941)

[4] Monseau, S.,  European Design Rights: A Model for the Protection of All Designers from Piracy, 48 (Volume 48, Issue I) 2001

[5] Galiano v. Harrah’s Operating Co., (2005) 416 F.3d 411, 418 (5th Cir. 2005)

[6] Chosun Int’l, Inc. v. Chrisha Creations, (2005)Ltd., 413 F.3d 324, 327-28 (2d Cir. 2005)

[7] Arielle K. Cohen “Designer Collaborations as a Solution to the Fast-Fashion Copyright Dilemma” (2012) 1 1 C.H.I.-KENT I. I.N.T.E.L.L. PROP. 172, 177

[8] Lanham Act, 1946 , 15 U.S.C. §§ 1051-127

[9] Lanham Act, 1946, 15 U.S.C. § 1127

[10] Louis Vuitton Malletier v. Burlington Coat Factory Warehouse Corp., (2005) 426 F.3d 532, 534 (2d Cir. 2005)

[11] Mark K. Brewer “Fashion Law: More than Wigs, Gowns, and Intellectual Property”,(2017) 54 San Diego L. Rev. 739

[12] Qualitex Co. v. Jacobson Prods. Co., 1995, 514 U.S. 159, 171-74

[13] Wal-Mart Stores, Inc. v. Samara Bros., 2000, 529 U.S. 205, 209

[14] Wal-Mart Stores, Inc. v Samara Brothers Inc., 529 U.S. 205 (2000)

[15] Mark K. Brewer “Fashion Law: More than Wigs, Gowns, and Intellectual Property”,(2017) 54 San Diego L. Rev. 739

[16] Red sole mark, Registration No. 3,361,597.

[17] 35 U.S.C.  Term Of Design Patent § 173 (2017)

[18] Elizabeth Ferrill & Tina Tanhehco, Protecting the Material World: The Role of Design Patents in the Fashion Industry (2011)12 N.C. J.L. & Tech. 251

[19] Tedmond Wong, “To Copy or Not To Copy, That Is the Question: The Game Theory Approach To Protecting Fashion Designs” (2012) 160 U. PA. L. Rev. 1139, 1148-52

[20] Directive 98/71/EC of the European Parliament and of the Council (1998) on the Legal Protection of Designs, O.J. (L 289)

[21] Directive 98/71/EC of the European Parliament and of the Council (1998) on the Legal Protection of Designs, Art. 1(a), O.J. (L 289)

[22] Council Regulation (E.C.) No 6/2002 (2001) on Community Designs, art. 11, 12 O.J. (L 3).

[23] Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council (2004) on the Enforcement of Intellectual Property Rights, Ch. II, S. 1, Art 3, O.J. (L 195).

[24] Council Regulation (E.C.) No 1383/2003 (2003) on Concerning Customs Action Against Goods Suspected of Infringing Certain Intellectual Property Rights and the Measures To Be Taken Against Goods Found To Have Infringed Such Rights, Art. 1, O.J. (L 196) 7

[25] Copyright, Designs and Patents Act 1988, c. 48; The Registered Designs Regulations 2001

[26] France Intellectual Property Code, 1992

[27] Industrial Property Code, pursuant to article 15 (2005) published in the Official Gazette no. 52 of 4 March 2005 – Ordinary Supplement n. 28

 [31] Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (2007) O.J. (C 306) 1

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