Topshop runs its own fashion show, Kate Middleton wears Zara, high-ends fashion brands collaborates with H&M… Fast-fashion chains do not disturb anymore, quite the opposite, they are watched, studied and even flattered sometimes. In this context, the border between inspiration, counterfeit copy and plagiarism appears very thin.
I have already heard about some designers working for Luxury brands coming back from «inspirational shopping» with Zara duffel-coats or reefers (exclaiming «These Spanish are quite good!») or people running ready-to-wear companies commenting: «We, we have stopped designing, what’s the point? Our best-seller shoes are quasi-identical to the last Slimane’s boots». Finally, it is common knowledge that some artistic directors prefer the most discreet copies of vintage Jil Sander or Helmut Lang’s pieces. The Americans Brian Lichtenberg (BLTEE) and Ruslan Karabin (SSUR)’s T-shirts and sweats branded Féline, Homiès or Comme des Fuckdown enjoyed commercial success. Now, we can buy online Vetements raincoat imitation «Vetememes», created by the Brooklyn student Davil Tran, for $59 (here). As for the brand Vetements, it sells a T-shirt depicting the DHL logo for €245, almost the same t-shirt than the one DHL sells for €6,50 on its website (here). The general impression conveyed is that copying is not shameful anymore.
Luxury brands plagiarize themselves while co-branding with H&M. In October 2013, Isabel Marant collection for H&M was pure copy, made in « cheaper » materials, of the designer’s best-sellers. All the same for Balmain last November.
And concerning customers, only few of them still hesitate to shop at Zara. According to the observers, customers definitely freed themselves from the loyalty pressure regarding luxury brands, especially when they think the pleasure they expect consuming luxury products is not worth the price they asked for. People mix « cheap » and chic without complexes. The kind of solemn investment purchase tends to disappear in favor of the hedonist act. Wearing only branded clothes use to be « snobbery », but now it is good form to choose only one brand-named item. To summarize, the so trendy things that are almost out of fashion, can be purchased for a cheap price while we can buy at designers’ the really exceptional and creative pieces.
Observing Sandro boots, a mix between a Givenchy and a Balenciaga design, the journalist Mathilde Toulot told this in 2013: «What should we do when we cannot afford the spirit of the times? Should we tighten our belt (or at that price we just stop eating) to stay loyal to older creations? Or we lower our ambitions and content ourselves with a more ordinary look, itself being a copy of older creations? It is a matter of ethics. Anyone has to make its own choice». Buyer dilemma…
Then, is there still any purpose fighting copies?
Opponents of intellectual property highlight fashion products lifecycle is short. So, according to them, copying helps replenishment and democratization of fashion. Because it is not only dedicated to an elite, it accelerates obsolescence and the emergence of new trends. All in all, it accelerates innovation. Moreover, for these supporters of free copy, today we cannot tell if a creation is a brand novelty or not.
The idea of legal protection of fashion creations has always been a source of controversy, because fashion, by definition, imitate, copy and offers a variety of trends. «Legal protection of clothing is a real challenge. We can discuss the usefulness of a patent protection since the instant fashion, ephemeral in principle, is replaced as quickly as it appeared. » attorney Laurent Gimalac, specialized in Luxury and Fashion law, notes. Indeed, there is no ex nihilo creation in fashion. Each season comes with its trends. Some motivate them, some other follows them. Some get inspired by them, some other copy them.
Nevertheless, because they come from trends, fashion creations are protected by laws. In France, they are subject to copyright and design protection. On the contrary, in the USA, fashion items are not always covered by the Copyright Act.
The over-literal copy of a piece or a distinctive part of it is considered as counterfeiting and will quite easily be punished by a court. However, the most skillful copycats try most of time to cover their crime up. The complexe copy of fashion items is very popular. This so called clever copy is subtile: it borrows a graphic style, steals a pallet of colors, reproduces patterns but always with slight differences that are not necessary noticeable. Nowadays, a real marketing of copied products exists. Copycats don’t forge anything: they scrutinize the markets, spot the trends, and rapidly identify the booming popular styles. between the forbidden counterfeiting and the allowed imitation, the boundary is hard to see.
Should this grey area drive us to give legal protection of fashion creations a miss ?
Some fashion house choose not to fight counterfeiting they are victime of, estimating their products quality and their knowhow are inimitable. For instance, Miuccia Prada who indicates: «We let people copy us, then we immediately move on». Yet, fashion industries lies on creativity and the intellectual capital they invested in it. Intellectual property is key the establish and consolidate a company market positioning. A good management of a firm intellectual assets contribute to increase its attractiveness towards investors.
Quasi-identical copy is punished. Only an original piece of clothing or accessory can be granted copyright protection, “original” here meanings it has the mark of the author’s personality. But originality is a wide and subjective criteria and the magistrates assessment is essential to solve the legal dispute. Let’s precise counterfeiting is evaluated regarding similarities and not differences between the models. Designers and marketing teams are often (mistakenly) convinced that we cannot talk of counterfeiting if there is more than seven differences.
If such a legal protection exists, we can wonder why luxury brands do not go the courts more often.
We have to know a legal action is always risky for luxury brands, since magistrates’ subjectivity is the main criteria to tell a fashion object can be copyrighted. If they decide something does not fit the copyrighting requirements, the arbitration award shall be final. Such a decision would impact badly the brand image and prestige in the cours of the trial.
Fashion brands would rather negotiate, one of the two parties deciding not to take legal action to stand up for its right in exchange of money. This deal has lot of advantages. First and foremost it enable fashion brand to keep the affair secret while ensuring their public image stays safe. Furthermore, transactional process is quick and only require few days to be implemented. In this conditions, lowering its expectation can help saving time, legal procedures happening to be very long, and money since there are not lawyers fees to pay.
Nonetheless, long term negotiations have a side effect: the less legal decisions about counterfeiting the blurrier are the limits between lawful copy and the banned one, since there is no legal precedents to refer to. All this finally profits copycats while legal acts become less and less dissuasive. If disputes litigations are only solved through deals, the value of legal compensations is not assessed and standardized by courts anymore but by parties and the wide rand of prices they will negotiate.
As we already said, today, copies are in most case subtle. Copycats take famous brands’ distinctive signs over (Miu Miu patterns, the clasp of the Birkin bag, Louboutin red soles, Balmain jeans zips, etc.) to use them on models having a totally different shape or design than the original one, in some cases even without any other similarity. About this kind of copy, brands’ legal units disagree: Should we initiate litigation? Are we claiming ownership on a trend, an idea?
Imitations would rather be punished for unfair competition. However, it is not practical to prove since it requires to show a fault, as mentioned in the article 1382 of civil code, has been committed. Even if intellectual property laws have a wide scope, they are not thought to protect a silhouette, a stylistic suggestion or an aesthetic line. They cannot be applied to ideas or styles and cannot prevent someone to claim ownership on a trend or a style. An atmosphere or an aesthetic state of mind cannot be copyrighted. Intellectual property does not concern fashion trends or marketing investment.
If luxury brands do not deliberately choose to be copied, it happens some high-ends brands’ models possess a simple reproductible design. In a way, if copycats are doing well by imitating luxury brands it is maybe because the latter are easy to copy.
Fashion companies have to be aware of the essential need to secure their intangible assets. The more brands are copied, the less credible they are when they stand up for their creations. Brands must fight illicit copy to prevent their rights fading away, but also to protect the future of fashion industry in its entirely. Indeed, for all the companies, including in fashion industry, competitive advantage resides it innovation and creativity. Thus, managers must take an inventory of the intangible assets in good time, determine their interests and decide which are the one they should protect and highlight thanks to intellectual property tools.
Graduate from IFM in 2013, Sophie worked as a product manager at Balmain, Yves Salomon Fourrures and IRO. She created her own blog, sophieabriat.com in 2012, during her Postgraduate Program at Institut Français de la Mode (IFM).