Design plagiarising the small Fair Isle knitwear brand, Mati

Design copying has long been a common practice in the fashion industry, some scholars arguing it has “long plagued the fashion field”. Generally, current IP laws in all jurisdictions do little to protect fashion designs, which remain a realm in the creative industry that has yet to inspire stricter protection rights. Jessica Littman argues, “society must protect the great talent of fashion designing. Courts need to adequately safeguard innovation and creativity in the fashion business”. Paradoxically, despite IP law, fashion designs have succumbed to the idea that designs are ‘free for all’. For example, in 1994 Yves Saint Laurent (YSL) sued American designer, Ralph Lauren in a French commercial court for the “point by point” copying of an YSL ‘tuxedo dress’ design. YSL’s lawsuit was successful in the European court, whereby IP laws are better protective of fashion designs.* This lawsuit is in many ways an exception that fashion designs are “free as the air to common use”. However, it is not the haute couture brands IFDs need to worry about replicating their designs. In 2015, French designer label, Chanel issued a full apology after plagiarising the small Fair Isle knitwear brand, Mati Ventrillon. Rather, it is the fast-fashion brands that have turned into outright lazy copiers protected by a large team of lawyers less forgiving than the Chanel legal team. The European fashion powerhouses, H and Zara are known as two of the major fast-fashion copyists, operating by delivering speedy supply chains, and tossing out runway-inspired designs at friendly prices only to then be eaten up by millennial shoppers. These hungry retailers are known to look to emerging IFDs for ‘inspiration’, but fail to provide any credit or compensation for their works for any subsequent use of their designs. In other industries, the significance of design copying relies on the closeness of the copying. For the design copies that are easily discernible from the original works, the recognition of the design conferred by the original works would remain. However, for the fast-fashion industry, when producing a high turnover of apparel is necessary for every season, it is difficult for the layperson to distinguish the original design from the commercialised copy. Furthermore, as a design is copied by others and used in less expensive derivative works, it becomes more widely purchased. Perhaps this is acceptable for the high-end retailers and fast-fashion brands keeping up with a fast-paced turnover, but for IFDs, the protection of their designs are practically doomed as soon as copiers discover their design. What consumers buy is partially a function of what others buy – the value of a positional good arises in part of a social context. This is known as ‘positionality’, which is often two-sided: its desirability rises, as some possess it, but subsequently falls as more people possess it. Similarly, as fashion designs spread, they gradually approach their demise. The distinctiveness of a design at its early stages of distribution assures its destruction when more designers copy it. Moreover, IFDs are already subject to a compromising position of having their designs replicated due to their vulnerable position in the industry, that is, if they have any position at all. Patent and trademark law offer high protection for designers but are excluded from the design element, and are almost irrelevant to emerging IFDs. Both because the patent standard of ‘novelty’ cannot be met by the designers beginning to enter a highly competitive industry, and for the practical reason that the patent application process proceeds too slowly to be meaningful for most fashion designs, which often live a brief fashion lifecycle. Moreover, there is a greater need for a high-IP system to assist IFDs in protecting their works from fast-fashion retailers taking their ideas and moving them to the market before they are able to exploit IFDs’ designs and sell copies at a discount to their originals— given the lower quality— and earn a profit thanks to lower unit costs and the avoided expense of design.A further explanation of low and high-IP systems is provided in the subsequent section below.