1. Doesn’t intellectual property law protect fashion?
It depends – and it’s complicated. Here’s a very general description of U.S. law in the area. Keep in mind that the law is constantly changing, and that each country’s law is different. In terms of the spectrum of legal protection for fashion design, the U.S. level is quite low.
Intellectual property law actually refers to several categories of protection, including trademark, copyright, and patent. Additional forms of protection exist, particularly in foreign law. Each category can be used to protect certain aspects of fashion, but most intellectual property laws were not written with clothing or accessories in mind.
Trademarks are the symbols used to indicate the source of goods – think Chanel Cs or the ubiquitous Nike swoop. They can appear on packaging, on the label, or as part of the design of the item itself. This is the strongest and cheapest protection available for luxury goods, especially if the trademark is registered with the government.
Trade dress is a subset of trademark law that might protect the overall look of an item itself, if that item is iconic – the Hermès Birkin bag, for example.
Copyright protects literary and artistic works, but not functional creations. That rules out most fashion, unless (and here’s the tricky part) the design is separable from the function. Don’t worry if that doesn’t make sense; courts don’t yet agree on exactly how this works either. One simple example is a T-shirt with a picture on the front. The picture can be conceptually removed and protected by copyright; the T-shirt itself is not protected.
So, is fashion art?
Counterfeit Chic’s patron saint/avenging angel Coco Chanel said no, but the question is still open to debate.
Patents apply to new inventions – convenient if you’re a scientist working on the next Velcro or Spandex, but not if you’ve only raised hemlines for spring. The process of obtaining a patent is also expensive and time-consuming; do not try this at home.
And just when you thought you understood all of this and were ready for the exam, there’s something called a
design patent, which can protect the aesthetic elements of an item.
Well, with all of this law out there, why can discounters copy a designer’s runway look before it even hits the stores?
A new clothing or accessory design typically falls between the cracks of the intellectual property system. The label is probably protected by trademark, but the design may not yet be sufficiently iconic to be protected by trade dress. Since the item is functional, copyright doesn’t apply. Very few garments or accessories actually meet the standards of patentability; even if they did, getting a patent takes months or years.
So what’s a designer to do? Get to work on next season.
2. Counterfeits, knock-offs, replicas, copies, high street versions – what’s the difference?
Translated into legalese, “counterfeits” refer to trademarks or trade dress reproduced without authorization – that is, illegal goods.
The term “infringing” indicates violation of trademark, copyright, or patent law. In common usage, “fake” also typically refers to prohibited items; additional consumer protection laws may apply.
Depending on the context, the other terms may refer either to illegal activity or simply to forms of manufacturing that are not particularly original. Oh, and “high street”? That’s British for a town’s main shopping street, where chain stores may sell their own versions of the latest designer frock. What was that about two countries separated by a common language?
3. If counterfeit handbags, sunglasses, DVDs, etc. are illegal, why are they so easy to find online and on the street?
Law enforcement resources are limited, and pursuing counterfeiters is expensive. This issue is especially controversial in less affluent countries and in countries without major creative industries that would benefit from enforcement.
And let’s face it, the market responds to consumer demand . . .
And I agree with your point about how Forever 21 isn't stealing away couture customers. But I think the issue most people have with Forever 21 isn't that they're stealing customers, but that it isn't fair for one person to spend $300 on an authentic designer top and then see someone walking down the street in a knock-off version that they bought for $19.99 at F21. I've seen a lot of very blatant knock-offs at F21 of Marc Jacobs stuff. I think F21 should focus more on making cute clothes that are keeping up with trends, but aren't blatantly ripping them off.
