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The imitation game: fashion's intellectual property crisis

Fashion brands and designers are facing the perfect storm of an upsurge in copying and the post-Brexit loss of pan-European intellectual property protections.

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Today’s fashion plagiarist is spoilt for choice. The internet is flooded with high-resolution images of the latest designs, and catwalk shows are live-streamed on social media. Meanwhile, pressure is mounting on brands and retailers to cut costs in an increasingly tough market, and design departments are shrinking. As a result, the perennial problem of copying is becoming even more prolific.

“Copying is becoming rife again,” confirms Achilleas Constantinou, founder of the Cocktail Clothing Company, which trades as the Ariella womenswear brand, and president of the British Fashion Design Protection Association (BFDPA). “For the past 10 to 15 years it’s been reasonably quiet, but we have seen a resurgence. The world has become so much smaller because of the internet and plagiarists have a false sense of safety, thinking that because it’s online, it is therefore ‘commonplace on the market’ [and not protected by law].”

This comes as the UK’s imminent exit from the European Union places a spotlight on intellectual property (IP) protection. Currently, designs in the UK are automatically protected across the EU, but this will no longer apply post-Brexit. Together with the surge in plagiarism, this could cause a major headache for brands and designers. As the threat grows, brands are taking steps to minimise the risk and, in some cases, aggressive action to protect their IP.

On the rise

A quick search online brings up a slew of recent stories about design and trademark battles. For example, sneaker brand Vans is suing value retailer Primark for allegedly copying the design of two of its trainers – Primark has rejected the claims, and the case is ongoing.

And it is not just designs: some companies fall foul of the law when it comes to trademarks and branding. Last July, premium activewear brand LNDR won a trademark dispute against Nike, after the latter used the term “LNDR” in an advertising campaign.

Liam Green, co-founder of young fashion brand Hype, has come up against this problem: “Because the word ‘hype’ is in people’s daily vocabulary, they assume anyone can use it – but it is trademarked.”

However, he adds: “On this front, the legal protection is fairly straightforward – whereas design is more subjective. There is a fine line between following trends and infringing intellectual property.”

Green says the rise of fast fashion and social media has brought this issue to the fore. “We’re now in a marketplace where production can be possible in a matter of days, not weeks or months. With the growth of social media, it has been easier than ever for brands to check what’s hot and what is working for their competitors, and this is creating an increasingly vanilla landscape of mimic brands, styles, and overarching looks.”

Sarah Wright, head of trademarks at law firm CMS, agrees that copying is on the rise: “Being inspired by third parties has always been an intrinsic part of the fashion industry, but direct copying does seem to be more common than ever.

“We are continually instructed on new matters where our clients’ designs have been copied. Since fast fashion is a fixture of the UK retail market, it is quicker to copy someone else’s designs than invest the time and resources to innovate.”

As Drapers went to press, Cocktail Clothing was in litigation with one high street retailer and considering action against another over alleged copying of its designs. Constantinou says part of the problem is that many retailers have downsized their design teams, and reduced the number of pattern-cutters, sample machinists and garment technologists they employ: “With business so difficult at the moment, everybody has reduced the size of their design studios. It filters straight down the supply chain.”

He adds that unscrupulous factories will show one brand or retailer’s sample to another, claiming it as an original design of their own: “The British retailer is none the wiser, places his orders and finds he is being sued for infringement of copyright.”

One high street supplier tells Drapers more retailers are “taking chances” by going direct to source, but they do not have the necessary design expertise: “They are always trying to steal our development ideas.”

Proper protection

Part of the problem is that smaller brands and designers do not always take advantage of the available legal protections, so copycats often go unchallenged.

Laurian Davies, international business manager at the UK Fashion and Textile Association, says : “[Smaller brands] sort out their VAT and get a reasonable accountant, but they don’t do enough in most cases to protect the most vital ingredients in the success of their company: their trading name and their designs. In the excitement of getting their designs out to market, they don’t think to register them.”

It seems like the small business community is a picking pool for the designers working for big brands

Carrie Anne Roberts, Mère Soeur

Carrie Anne Roberts, the designer behind UK women’s and children’s wear brand Mère Soeur, last year accused Gap-owned US retailer Old Navy of copying one of her slogan T-shirts. Her Instagram post attracted thousands of likes and 827 supportive comments. 

However, although Old Navy removed the T-shirt in question from its website, it continued to sell it in stores – and Roberts could not take legal action, because she had not registered the design in the US.

“It seems, in some cases, like the small business community on Instagram is a picking pool for the designers who are working for big brands,” she tells Drapers. “There’s little you can do unless you can pay to either protect your designs before releasing them or take legal action if a brand copies you.”

Green points out that legal protection is ”expensive and requires a lot of resources”.

“We have found that continued action and staying on-top of listings day by day is a good approach, and this is really the only thing you can do,” he adds. ”It’s a tedious task that requires a lot of man hours, but word soon spreads within these networks [that you take it seriously].”

At present, even if fashion brands do not register their designs, the EU Unregistered Community Design right has offered a means to prevent the sale of copied products across all 28 of the bloc’s member states: a design is “given protection for a period of three years from the date on which [it] was first made available to the public within the territory of the EU”. Importantly, this includes surface decoration, such as prints and embellishment, which is not protected by the current domestic UK design right.

However, Wright warns that Brexit could have a “major impact” because UK designers will no longer be able to rely on this “valuable” EU right – making a design available in the UK will no longer automatically grant protection in the EU. She advises several steps that can be taken to ameliorate this problem (box, below).

Davies says brands should use Brexit as an opportunity to assess their procedures: “They should be looking at all IP, registered trademarks and design rights, and making sure that, if they filed them in the UK, they also file them in the EU, if they think they will have a lot of customers there.

“We don’t think the protections that are already in place are going to wither – we think they will be mirrored. But it’s time to look at the protections you have, particularly where you filed trademarks.”

The risk of copying is growing, as squeezed design departments increasingly cross the line between finding inspiration from others’ creations and ripping them off outright. However, the more action brands and designers take, the less likely it is to happen – and the stronger the position they will be in if it does.

Top tips for brands with a copycat problem

1. Ensure anyone who collaborated on the design has assigned any intellectual property rights they own to you. 

2. Consider filing UK and/or EU registered designs for the hero pieces from any collection. You can test which of your designs sell the best before you register them, as long as you file your application within 12 months from the date of first sale.

3. Armed with a registered design you can more easily enforce your rights either by contacting the retailer of the copycat product, or by submitting a take down request to an online marketplace.

4. Consider leaving a unique “fingerprint” in your design, which a plagiarist may inadvertently copy.

5. Think about where you are going to launch the product. If it is the UK, consider filing separate EU registered designs for your best-selling products.

6. Keep good records of the creative process from the research stage onwards.

Source: CMS



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