INTELLECTUAL PROPERTY LAWS MAKE LIFE EASIER FOR BIG RETAILERS AND FAIL TO PROTECT SMALL FASHION ENTREPRENEURS

By: Maggie Horstman

Brands like Forever 21, H&M, Urban Outfitters, and Zara are known to quickly produce and sell mass quantities of clothes, and in the era of e-commerce, online brands are picking up the pace and setting an even faster standard for fast fashion by taking products from design to sale within the course of a single week.[1] Fashion Nova, which became one of the most Googled brands in the world in 2017, has introduced between 600 and 900 new pieces per week.[2] With the amount of products fast fashion retailers manage to release, it is hard to imagine that each item is a unique design; in fact, brands like Forever 21 and Zara often mimic designs from the runway, and luxury designers have fought back.[3] Unfortunately, loopholes like limited resources or lack of brand recognition make it difficult for newer designers and fashion entrepreneurs to protect their work like luxury brands do.

In 2012, Zara was accused of ripping off New York street artist Patrick Waldo’s graffiti for using the design on a T-shirt and in 2016 was accused of copying independent designer Tuesday Bassen’s pins.[4] Old Navy gained attention for copying Carrie Anne Roberts’ (founder of Mére Soeur) graphic tees and selling them at half price; the store eventually pulled the shirts from its website after backlash on social media.[5] Even the Navajo Nation faced trademark infringement by Urban Outfitters when it placed the Navajo name on various products.[6]

The practice of copying designs from independent creatives has become common practice among e-commerce brands like Fashion Nova. Fashion Nova has faced numerous allegations of selling knockoffs, including those by designers like Luci Wilden of Knots & Vibes, whose sales have gone to support teenage mothers in Kingston, and Jai Nice, who claims the brand copied designs from her line Kloset Envy as part of its common practice of stealing and appropriating the work of Black designers.[7] Designer Kim Shui stated, after Fashion Nova stole one of her designs, that being “ripped off” has an impact on independent businesses, especially when the copied piece sells for a much lower price.[8]

Unfortunately, the current state of intellectual property law encourages big fashion brands to continue the cycle of stealing designs and quickly turning them into profit. Fashion designers can formally obtain protection for their designs through trademarks, trade dress, design patents, and copyrights; however, these protections have little to offer for small fashion businesses and entrepreneurs.[9] First, a trademark, which provides protection to a designer’s mark, only genuinely protects brands with logos present on the garment, and specifically favors brands with widely identifiable logos.[10] Brands like Louis Vuitton, with the notorious “LV” logo, benefit greatly from trademark protections because the incentive to purchase the product comes from the logo itself.[11] Brands without a purchase-inducing logo benefit much less from trademark protections because legal knock-offs generate the same appeal.[12]

Trade dress provides protections for the overall appearance or image of a product, “including the design of packaging, labels, containers, displays, décor, or the design of a product, a product feature, or a combination of product features.”[13] To protect a design, it must be distinctive and cannot be functional.[14] The distinctiveness standard is difficult to achieve for small brands for the same reason a trademark is often unobtainable, and the functionality requirement eliminates most clothing items because clothing is functional in its purpose (although much of fashion is also ornamental in purpose).[15] Independent fashion entrepreneurs may find it near impossible to apply for a design patent because of the long and expensive process; because the patent must be for a new or original ornamental design, the subject of the patent could easily be out of style by the time it is approved.[16] Finally, like trademarks, copyright protections are subject to a functionality exclusion. While the Supreme Court expanded the applicability of copyright protections in the 2017 case Star Athletica, L.L.C. v. Varsity Brands, Inc.,[17] there are still many designs that go unprotected solely because they are not separable from the useful article.[18]

The unfortunate consequence of intellectual property restrictions is that independent designers may not only lack the resources to protect their designs, but they often design items that are inherently unprotectable. The only way intellectual property laws will truly work for fashion entrepreneurs is if the copyright and trademark functionality requirements are loosened and the patent process becomes more accessible for designers with fewer resources. Until the law remedies these vast loopholes, social media may be the best solution there is, as independent designers with loyal followings often depend on tips from their customers to raise awareness about copied designs.[19]


[1] See Mary Hanbury, Zara is facing a massive threat that could jeopardize the business, Bus. Insider (May 23, 2017, 2:48 PM), https://www.businessinsider.com/fast-fashion-is-getting-faster-2017-5 (explaining online retailers have streamlined their supply chain to enable a quicker manufacturing process).

[2] Sanford Stein, How could changing consumer trends affect fast-fashion leaders H&M and Zara?, Forbes (Feb. 10, 2019, 11:41 PM), https://www.forbes.com/sites/sanfordstein/2019/02/10/how-could-changing-consumer-trends-affect-fast-fashion-leaders-hm-and-zara/#23879da06f48.

[3] See Mary Hanbury, Zara and Forever 21 have a dirty little secret, Bus. Insider (Mar. 6, 2018, 8:45 AM), https://www.businessinsider.com/zara-forever-21-fast-fashion-full-of-copycats-2018-3 (discussing the lawsuit between Forever 21 and Gucci over its signature stripe design).

[4] See id.; Jessica Misener, Zara steals street artist’s design for T-shirt?, Huff Post (Sept. 4, 2012, 5:10 PM), https://www.huffpost.com/entry/zara-rip-off-patrick-waldo-moustache-street-_n_1855486.

[5] Chavie Lieber, Fashion brands steal design ideas all the time. And it’s completely legal., Vox (Apr. 27, 2018, 7:30 AM), https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.

[6] Tribune News Services, Navajo Nation seeks millions of Urban Outfitters for using tribe’s name, Chi. Trib. (Feb. 3, 2016, 8:21 AM) https://www.chicagotribune.com/business/ct-navajo-nation-urban-outfitters-lawsuit-20160203-story.html.

[7] See Evan Ross Katz, Fashion Nova accused of knocking off another independent designer, Fashionista (Jan. 16, 2019), https://fashionista.com/2019/01/fashion-nova-knockoff-crochet-knots-and-vibes-dress; Fashion companies steal from online black shops, Black Bus. Rev. (Apr. 18, 2019), https://www.blackbusinessreview.net/en/business/64642-fashion-companies-steal-from-online-black-shops; BET Staff, Influencer claims Fashion Nova stole her designs, BET (July 24, 2018), https://www.bet.com/style/fashion/2018/07/24/jai-nice-of-kloset-envy-vs-fashion-nova.html.

[8] Dara Prant, A fashion designer is accusing Fashion Nova of copying two of her dresses after Kylie Jenner wore them, Bus. Insider (Aug. 3, 2019, 10:33 AM), https://www.businessinsider.com/designer-says-fashion-nova-copied-her-dresses-2019-8.

[9] See Jasmine Martinez, Intellectual Property Rights & Fashion Design: An Expansion of Copyright Protection, 53 U.S.F. L. Rev. 369, 371 (2019).

[10] See id. at 372.

[11] See id. at 372-73.

[12] See id.

[13] Restatement (Third) of Unfair Competition § 16 (Am. Law Inst. 1995).

[14] Id.

[15] See Seth DiAsio, Fashion Has No Function: Diminishing the Functionality Bar to Trademark Protection in the Fashion Industry, 38 Miss. C. L. Rev. 28, 38 (2019).

[16] See Martinez, supra note 9, at 374.

[17] 137 S. Ct. 1002, 1004-05 (2017) (holding that “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as two- or three-dimensional work of art separate from the useful article, and (2) would qualify as protectable pictorial, graphic, or sculptural work… if it were imagined separately from the useful article into which it is incorporated”).

[18] See DiAsio, supra note 15, at 37-38.

[19] See Lieber, supra note 5.

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