One fashion blog has pointed out that Prada’s Spring 2011 collection can been found in Zara. Comparing some of the styles, side by side, it seems as though some the designs were taken directly. Prada’s recent runway looks clearly served as an inspiration to another designer—but is this an infringement on patented design? Low-cost stores, like Zara, Forever 21 and H&M seem to consistently copy the work of other designers.
In fact, a variety of designers and stores, including Trovata, Diane Von Furstenberg, Anna Sui and Anthropologie, have filed over fifty lawsuits against Forever 21 over the course of three years. One of the infringement cases claims that Forever 21 copied unique design details like button placements, decorative stitching, and fabric patterns.
In 2008, Louis Vuitton was actually successful in a case against eBay, which was selling counterfeit goods on the site. The LVHM Group charged eBay for selling clothing and bags of Louis Vuitton, Givenchy, Fendi, Emilio Pucci and Marc Jacobs. In the past, Tiffany and Co., Rolex and L’Oreal charged eBay with similar claims. Based on U.S. Supreme Court holding in Inwood v. Ives, a third-party is liable if it “intentionally induces another to infringe a trademark or it if continues to supply its product to one whom it knows to has reason to know is engaging in trademark infringement.”
In Tiffany’s case against eBay, the company suggested the eBay is not active in monitoring and acting on infringers through its “notice-and-takedown” procedure. Tiffany’s trademark infringement claims against eBay are actually analogous to the charges taken up on peer-to-peer filing site, Napster, which was held responsible for facilitating piracy. Based on claims from the Council of Fashion Designers of America, such counterfeit purchases are especially damaging to smaller brands that do not have the resources to endure reduced sales or battle infringement cases.
What action should be taken to prevent trademark infringement?
“Circuit to Decide Who Should Monitor Online Counterfeiters.”
http://www.besunderlaw.com/pdf/Who-Monitors-Online-Counterfeiters-NYLJ-3-17-2009.pdf
“Adventures in Copyright: Zara’s Sweet on Prada’s Entire Spring Collection”
“Forever 21’s Ability to Copy Designer Clothes Could Be in Jeopardy.”
http://nymag.com/daily/fashion/2009/04/forever_21s_ability_to_copy_de.html
“Court Orders eBay to pay $61M in Louis Vuitton knockoff case.”
http://www.usatoday.com/money/industries/retail/2008-06-30-ebay-fakes-france_N.htm
Fashion and culture should be about access. So while copying the direct design (or movie or music) should be illegal, I do think there needs to be a viable means for everyone of various income brackets to access “nice things.” However, as a fashion and art enthrusiast, I do think that certain things should be protected. This is difficult, though, because I think it’s very hard to define what crosses the line. For example, the Zara link you provided shows Zara copying bright stripes. Neons are a trend this season already, so I don’t see how this is “infringement.” You cannot own stripes. However, the Celine skirts in the linked article do run a less justifiable comparison. But how can the courts analyze this? I think designers should be more engaged in pertaining copyrights to their innovations but must remember that they don’t own the basics.
The NY Times article below shows a really great example of exact copying, the green Bottega Veneta bag sold at Bergdorf Goodman’s for $1,680, while the look-alike is sold for $48 at Urban Outfitters.
As it mentions in the article, Stan Herman, President of the Council of Fashion Designers says, “It is not as complex as everybody’s making it. To take someone’s design and make a line-for-line copy, that should be stopped.”
In the Louis Vuitton case (the court document is linked below, as well), Vincent Terranova, owner of Canal Street properties, was charged under the Trademark Act. It is interesting to see on this document how each Louis Vuitton bag has its own unique patent. Whether a designer copies another or a vendor sells counterfeit bags on Canal Street, it all falls under the jurisdiction of patent infringement.
I definitely agree that there are indeed core basics, but some of these patterns and designs were intentional copying. Another illustrative example is the comparison between Forever 21′s $32 “Sabrina” smock dress and Diana von Furstenberg’s $325 “Cerisier” design. The blog below also shows the DVF Aubrey yellow patterned dress and its identical Forever 21 copycat.
With such close copying, I think that retailers like Forever 21 should definitely be prosecuted, as would an infringer of music or a novel. Based on the Harvard Law School article, it says that under the Copyright Act of 1976, the garment or other design should pass the “physical separability or conceptual separability” test. This would mean that separate from the utilitarian function of the clothing itself, there must be a particular graphic, feature or other detail to present to the judge.
“O.K., Knockoffs, This Is War”
http://www.nytimes.com/2006/03/30/fashion/thursdaystyles/30copy.html
Louis Vuitton, Burberry etc. v. Vincent Terranova
http://www.counterfeitchic.com/cases/terranova.pdf
“Designer Sues”
http://www.nypost.com/p/news/regional/item_Q8NckdVhkGvmi7YLtYPndN;jsessionid=C26689AC44B96576E73A849169907FC1
“DVF Sues Forever 21″
http://www.nitrolicious.com/blog/2007/03/28/diane-von-furstenberg-sues-forever-21/
“Protecting Works of Fashion From Design Piracy”
http://leda.law.harvard.edu/leda/data/36/MAGDO.html
Thus far, I think that ‘trademark’ has only been extended so far as to protect an actual brand – that is, counterfeit goods are considered infringement, but knockoffs is a much more legally murky territory.
In other industries, it seems easier to argue for originality, but in fashion – much of which is recycled from former eras and past seasons – making a case for protecting a design is more complex. Is the pattern copyrighted, or does the protection need to include the fabric and stitching? What is the “stealing” called, piracy or infringement?
I totally agree, I think it is such a weird gray area to define. For example, every season, at least one store makes a bag that is clearly “inspired” by the Hermes Birkin bag and yet, Hermes does not bother to care. Granted, I’m sure Hermes understands and acknowledges the exclusivity of an $11,000+ bag. But also, what do they own on the bag? It’s hard to copyright the individual elements that make something, especially fashion, unique. DVF only won her court case because copying a pattern is akin to copying an illustration or even making a pirated DVD. She didn’t win for the shape or design of the actual dress. However, I think this is the most legitimate of all fashion copyright clauses. If you can prove that something is uniquely yours, more power to you. But Prada can’t get mad because Zara is also declaring stripes a trend this season.
Amanda, the copyrighted design is not exclusive to a pattern, fabric or stitching, but instead, the detail that makes two items sold from two different designers essentially identical. The trademark is essential to this design component, especially when the trademark is indeed the design, for example, the Burberry check for Burberry and LV for Louis Vuitton, as seen in the court case I posted above.
In terms of the actual terminology, I was referring to both, as does most legislation. The infringement would be on the design itself, while the sale of knockoff bags and other counterfeit goods would be considered piracy. For example, Senator Chuck Schumer proposed a bill entitled, the “Innovative Design Protection and Piracy Protection Act” (2010). Unfortunately, the bill was not voted into law.
“Schumer Bill Seeks to Protect Fashion Design”
http://runway.blogs.nytimes.com/2010/08/05/schumer-bill-seeks-to-protect-fashion-design/
Kristi, these lawsuits are intended to preserve the integrity of original designs. While a designer will most always have a prior trend in mind while creating their line, the use of very vague style influences (little black dress, striped tees etc.) is not the same thing as making an exact replica of a contemporary and recent design. Also, DVF won the case because that’s the only way a designer can convince the judge of infringement—there has to be a pattern or other distinct and unique detail that was copied. Take a look at this tote bag with an image of the Hermes Birkin bag. Hermes didn’t even sue over a knockoff bag—it sued over an image of it!
In addition, this is not necessarily about luxury goods and democratization of fashion. Aside from the fact that retailers have no right to use other companies’ designs merely to ensure consumer access, these lawsuits are not always a battle between high-end luxury companies and fast-fashion, cheap clothing stores. Singer Gwen Stefani, for example, sued Forever 21 over a t-shirt design, which is obviously inexpensive compared to any designer bag or clothing. Forever 21 took almost the same catchphrase and image for the t-shirt that the singer designed for her concert tour at the time. Would it really make sense for Forever 21 to suggest that it conceptualized the idea for a unique Harajuku doll t-shirt at the exact same moment that Gwen Stefani came up with the same theme customized for her tour? That idea had nothing to do with a larger trend or popular style (in the U.S., anyway). Forever 21 was clearly copying then and continues to do so.
“Hermes Sues Thursday Friday for Using Birkin Bag Image”
http://www.huffingtonpost.com/2011/01/31/hermes-sues-thursday-frid_n_816613.html
“Gwen Stefani Sues Forever 21”
http://www.mtv.com/news/articles/1565018/gwen-stefani-accuses-forever-21-biting-her-style.jhtml
The designs in fashion should be treated similar to how art work creations are treated. Thus, in order to be treated properly, the fashion design should be something that can be copied. Shouldn’t cheaper brands accomplish its purpose through providing cheaper version of highly designed fashion? It is not going to be edgy high fashion from its beginning anyway because the fabric, the method, and its craftsmanship are originally different. No matter how hard the cheaper brands like Zara, Forever 21, and H&M copies the designs of Prada or high brands, Those brands will perpetually maintain their target customers and produce their clothes accordingly. Consequently, I do not seem that copying designs among brands that have different target customers should be a problem. Shouldn’t high fashion designers be more proud and confident about their design compared to those replicated and cheaper ones?