Fast fashion is characterized by mass production of inexpensive clothing that mimics current catwalk trends. Therefore, the fast fashion sector is driven by an endless demand for new ideas – influenced by the latest trends.
However, a growing number of designers are accusing companies like Shein, H&M, and Pretty Little Thing of plagiarizing their designs and committing copyright infringement.
As Philip Partington, Partner in Intellectual Property at JMW Attorneys It’s a longstanding practice, he explains, for fast-fashion companies to draw inspiration from leading industry names and, in certain cases, to duplicate certain clothing items. This enables these companies to provide trendy clothing at lower prices than their designer counterparts, although they are in a legal gray area with boundaries being crossed occasionally.
It’s one thing to repeat popular trends, but some independent designers have recently suspected fast-fashion brands of directly moving their work to sell, or of copying unique designs that warrant copyright protection. Here, we explain what components of design are eligible for protection, the different legal aspects involved in copyright infringement cases in the fast fashion sector, and how small businesses or designers can protect their work from infringement.
Is the fast fashion sector against the law?
Fast fashion thrives on drawing inspiration from popular designs – or sometimes directly reproducing them. This has long been the norm, which has led to numerous claims of intellectual property infringement over the years. Companies like Forever 21, Fashion Nova, ASOS, and Shein have all faced legal action for copyright and trademark infringement when their designs resembled those of prominent designers. Despite this, the practice persists and may be perfectly legal in many situations.
Several factors influence the legitimacy of design tradition and it can be difficult to pinpoint. The main limitation of copyright rules is the extension of protection to works of art. In the context of apparel, copyright protection only applies to specific design elements that are unique. Anything related to the function of the garment, such as the shape of a shirt, does not qualify for protection, because it is neither distinctive nor original to a single product.
A unique pattern or color scheme that distinguishes an item may, but not always, qualify for legal protection. For example, while the iconic red-soled shoe is widely associated with designer Christian Louboutin, a French court ruled in 2012 that Zara’s imitations did not infringe the designer’s intellectual property rights.
There are no specific guidelines for applying this principle, however, and it can be vague. Thus, it is crucial to consult Intellectual property attorney For advice before making a decision. With their expertise, they can help determine whether your intangible assets—including designs, logos, company names, products, and more—infringe someone’s intellectual property rights. They can also help you register your intellectual property and monitor infringement by others to ensure your assets remain protected.
The fast fashion sector often takes advantage of this ambiguity, enabling companies to emulate high fashion trends without violating copyright by closely reproducing original works within the confines set by copyright law.
How can younger designers interact?
The fashion industry’s constant need for innovation has led designers to explore a wide range of sources for inspiration. In some cases, this has included young designers whose work is garnering attention on social media platforms such as Instagram.
The most important step to take if you’re concerned about possible infringement of your work – whether you’re a small designer or a multinational corporation – is to understand how copyright law applies in such situations. This will enable you to identify cases of copyright infringement (as defined by law) and take appropriate action.
How do I identify copyright or trademark infringement?
As mentioned earlier, it is often legal in the fashion world for companies to mimic designs, and so, while many designers may feel their rights violated, this is not always legally accurate. Using the example of a t-shirt with a cactus illustration, we’ll explain the different intellectual property rights that may apply.
First, the concept of decorating a clothing item with cactus cannot be protected. Intellectual property laws govern the expression of ideas, not the ideas themselves. Thus, anyone is free to design a t-shirt with a cactus on it without infringing on someone else’s intellectual property rights.
An image of a cactus would probably not be eligible for trademark registration unless it has been altered in some way to make it unique. For example, a cactus design that includes a company logo or is arranged in a distinctive shape may be eligible for trademark registration. However, without advice from an intellectual property attorney, it can be difficult to determine the eligibility of a particular mark.
If you successfully trademark your cactus image, it would be illegal for someone else to print a design using the same or sufficiently similar cactus design. However, you should also ensure that your design does not violate any existing trademarks. If someone else already owns a cactus similar to a registered mark, you will be guilty of infringement by selling your design.
The illustration or photograph of a cactus is protected by copyright. This means that it would be illegal to produce a design featuring a particular cactus image, unless:
- You create the image yourself
- I hired someone else to create the picture
- You have purchased or licensed the rights from the Creator
- Image published under an open license
In many cases, it would also be illegal to recreate the image or reproduce a similar version. If you want to create clothing items that feature a specific piece of artwork, consult with an intellectual property attorney about the possibility of licensing the copyright to the image you want to use.
How can designers protect their intellectual property rights?
The most effective way to protect your intellectual property rights is to register any assets that qualify as trademarks and watch for infringement. Intangible assets, such as a logo, company name, or even design elements common to your business, may qualify for protection. This can ensure that you have the legal right to fight the infringement. If you sell in multiple territories or markets, you may need to register your intellectual property in each territory separately, as these rights only apply to specific jurisdictions.
Unlike trademarks, copyright protection is applied automatically, and no registration is required. Another distinction is that copyright law generally applies internationally, which means that you may be able to take action even if your work has been infringed outside of your jurisdiction.
