Knock it Off

Knockoffs.

They are the reason you’re able to wear your Wayfarers* and still make rent this month. For the masses, they are dream makers. Rarely the object of much love, they are always one step behind the movers and shakers. Throw them, lose them, you don’t care. Whether sunglasses, toys or milk’s favorite cookie, knockoffs allow us the guilt-free experience of almost owning something worth telling your friends about. Yet, in this increasingly litigious world, you may wonder: how is any of this legal? How can stores like H&M slap their brand name on sunglasses that happen to look exactly like Ray-Bans and sell them for definitely-not-Ray-Ban-prices?

Depending on the industry, there’s a good chance that at least some knockoffs are not only allowed, but encouraged. For the purposes of this article (and the person who requested it), we will take a look at the role of knockoffs, specifically in the fashion industry.

What’s a knockoff?

To understand how knockoff fashion is legal, we must first understand what is and what is not considered a knockoff. Take a look at the white jacket in the picture below.

Let’s say this jacket was originally designed by the Italian luxury brand MSGM. If a store like Zara or Forever 21 sold a jacket that coincidentally happened to look very similar to (“inspired by”) this jacket and sold it to the public as an MSGM jacket without their permission – perhaps by using MSGM’s trademark – it would be a counterfeit rather than a knockoff, and therefore illegal in the U.S.

However, if Zara or Forever 21 sold a jacket (or scarf, shoes, sunglasses – anything except jewelry really) that coincidentally happened to look very similar to MSGM’s jacket but simply sold it under the Zara or Forever 21 brand name, it would be a legal knockoff, and would form the basis of the global 50+ billion dollar industry collectively known as “fast fashion“.

How are these knockoffs legal?

In the U.S., fashion knockoffs are very common and very legal because traditional areas of federal intellectual property (“IP”) protection – trademark, patent, and copyright – are not wholly applicable to the world of fashion. At most, these areas of IP protection may be patched together to protect individual elements of fashion (i.e. trademark for a label or patent for a particular zipper on a dress). However, this piecemeal approach offers no real solution to designers whose styles are often ripped off less than a week after first walking the runways.

Copyright, the area of law most applicable to protect designers from ripping off their designs, applies to literary, musical, artistic, and dramatic works. According to U.S. lawmakers, fashion does not fall into any of these categories because fashion is not “art”. Drawing parallels from industrial designs of ship vessel hulls, U.S. lawmakers decided that clothing and other articles of fashion are not protected under copyright law because clothing, much like a ship vessel, is considered a “useful article“. It serves a purpose. Whether to protect our vital parts from the elements or to simply protect our own decency, clothing is viewed as a tool for the masses.

Because of this utilitarian designation, the actual design of a useful article is only protected if the design includes an expressive, graphical feature that can be identified and exist separately from the article itself. Also known as the “test for separability“, courts have used this standard to generally deny copyright protection to clothing, reasoning that a garment’s expressive feature cannot be separated from the article itself. So a fashion designer looking for copyright protection on his or her dress must convince a judge that the dress is not functional (not likely) or that the dress’s artistic design is separable from the actual dress, provided the design meets certain originality and nonfunctionality standards (also not an easy task). What about the two-dimensional, pen and paper sketches the designer used in making the dress? Interestingly enough, those sketches are eligible for copyright protection even though the dress those sketches are based on, is not.

What does this mean for the world of fashion?

Despite attempts by fashion designers and legislators to extend copyright protection to fashion designs, the fast fashion industry isn’t going anywhere anytime soon. Designers have faced an uphill battle due, in part, to the longstanding general policy approach of copyright law: encourage creativity to benefit the public. Knockoffs encourage creativity and ultimately benefit the fashion industry by forcing the original creators to innovate, ensuring a constant supply of styles, trends, and profits – or so they say.

What, then, is a struggling fashion designer to do? Applying for a traditional patent is out of the question, as a fashion design is not considered a “new and useful process, machine, article of manufacture, or composition of matter“. Registering for a trademark provides strong brand protection, but as shown in the jacket example above, provides little else. Specific, narrow legal protections, such as trade dress and design patents, may be available for the truly ambitious. However, their lengthy application processes make little sense to pursue in a world where styles appear and disappear, seemingly overnight. Looking abroad may be a better option, as European laws offer fashion designers more protection as compared to the U.S. Ironically, Europe is also the birthplace of some of the biggest names in copycat fashion.

Given these limited options, perhaps the best approach for designers is to keep pushing their creative envelopes while taking some solace in the age old saying: Imitation is the sincerest form of flattery. After all, you wouldn’t wear those Wayfarers* if they didn’t look good on you.

 

*We all know they’re not real.

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