Fashion Design and Imitation: Flattery or Theft?

Coco Chanel famously said that "imitation is the highest form of flattery".

Does this suggest that the fashion industry takes a more relaxed attitude towards intellectual property rights than other sectors?

A current debate taking pace in the USA suggests so. The Design Piracy Prohibition Act has reignited a recurring debate in the fashion industry – can fashion design rights be counter productive? Currently fashion designers in the USA enjoy little protection. This current bill is the latest attempt to introduce some. It proposes allowing fashion designs to be registered to protect "the appearance as a whole of an article of apparel including it's ornamentation". An "article of apparel" includes clothing, gloves, footwear, handbags, purses, belts and glasses frames. Once registered, the designer would enjoy 3 years protection.

Yet many in the fashion industry in the USA oppose this move. It is argued that copying benefits the industry because it creates diffusion of designs, promotes creativity and innovation, anchors trends and helps burn those trends out so the next season is ready to receive new designs. Other arguments used are true for other sectors as well: the cost of enforcing rights; the fear it assists established designers more than those starting out; and the problems in identifying what is genuinely new.

But within the UK, the existence of a wide range of rights does not seem to have had a detrimental effect on the industry. Designers here enjoy a variety of UK and EU design and copyrights in their work. Not only is there a registration scheme in existence, upon which the USA proposal appears to draw, but there are also rights for designs not registered.

The Court has also been prepared to uphold these rights. In Jimmy Choo v Towerstone (2008) EHWC 346, summary judgment was successfully obtained where a High Street product was considered by the Judge to be too close to the designer handbag it was inspired by. Mr Justice Floyd said "looking at the 2 handbags side by side…the likelihood that these two designs could have been arrived at independently given the large number of identical features ….seems to me to be truly fanciful".

Yet these cases are few and far between, suggesting the USA may have little to fear by granting these rights. The UK experience seems to be that the existence of the rights neither stifles creativity nor kills innovation. Whilst top end designers will always be a source of inspiration for others, in reality a consumer wanting to buy a top end design is perhaps unlikely to buy the High Street alternative if they want the name and label. It is only where someone’s commercial interests are threatened that they tend to take action.

But where a line is crossed, at least here in the UK action can be taken. The view in the USA is that this bill is likely to fail, leaving fashion designers having to continue to view imitation as flattery.

Written by Stewart Vandermark, a Director specialising in Intellectual Property matters. 

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