Designer plagiarism: what does fast fashion have to answer for?

Mar 24, 2020

Written By Emma Finamore

The fast fashion market value is higher than $35bn, but creating cheap garments on demand has given birth to a more sinister trend—ripping off other brands, from high end fashion houses to smaller designers. Where does artistic interpretation end, and plagiarism begin?

Imitation is the sincerest form of flattery, so the old saying goes. But in the fashion world, imitation often goes much further. It is monetised, often exploiting complex and outdated copyright laws, as well as smaller designers with little resources with which to fight back.

Imitation (or plagiarism) is also something that’s being powered by technology: it has never before been quicker or easier to share images of designs internationally. Rapid manufacturing processes mean fast fashion brands can churn out imitation clothing at the click of a button, regardless of the ethical or environmental implications. Western consumers’ increasing appetite for buying clothes instantly—and extremely frequently—is whet by the smartphones and social media apps in their pockets, and fed by the same day-deliveries characteristic of our efficiency-fuelled culture.

There is, then, a big financial incentive to plagiarise designs—but plagiarism itself often sits in a grey area. Take fonts, for example. While an exact typeface and its glyphs raise intellectual property considerations in copyright, trademark, design patent, and related laws, something that looks a lot like that font can get away with imitation without crossing legal lines. To complicate things further, the copyright status of a typeface—and any font file that describes it digitally—varies between jurisdictions. In the United States, for example, the shapes of typefaces are not eligible for copyright but they may be protected by a design patent.

It’s complicated, with battles being fought online—between fans of particular brands and designers, or even designers themselves taking to the web to air frustrations with those they see as ripping off their creations—as well as being fought in court.

In 2017, Swedish clothing giant H&M was called out online for using a typeface looking an awful lot like famed Russian designer Gosha Rubchinskiy’s signature gothic font on its T-shirts, hoodies, and socks. Despite fashion watchers and fans highlighting the differences, there is no evidence that legal action was taken by Rubchinskiy. That same year, iconic skate label Thrasher sent a cease and desist letter to H&M for using something akin to its instantly-recognisable flames font. The brand then took to Instagram to expose the controversy to its followers and show how it was handling its brand protection. It demanded that people "respect the original" as it shared H&M's legal response.

The retailer’s lawyer denied any infringement, claiming its design was “an ornamental or a decorative feature”. Interestingly in H&M's response, it did not cite the entire legal test for whether there is infringement or not. Instead it narrowly set the standard of whether a consumer would be confused by the print, unable to differentiate between the words "Thrasher" and "Trippin", which was emblazoned on H&M’s sweater.

From a legal standpoint, the criteria for a trademark infringement includes the likelihood that consumers will be confused, but there are also other factors to be taken into consideration, including the strength of the mark and whether a consumer would think there is an affiliation between the brands.

When it comes to prints and other design features like shape and embroidery, things are just as complex. Even something as simple as stripes in different colours can present an infringement issue. Hermès, for example, has a registered trade dress for the silhouette of its iconic Birkin bag. Trade dress is the commercial look and feel of a product or service, that identifies and distinguishes the source of the product or service. It includes the various elements (such as the design and shape of materials) used to package a product or services. It can also be used as a claim in court, regardless of whether it has been officially registered. However, the threshold is high, especially for small and emerging brands that would have a hard time proving people associate items with their lesser-known companies.

Recently there have even been accusations that high-profile fashion figures are leaking whole designs—the outfits they’re gifted by high-end labels—to fast fashion brands before wearing them in public, so they can roll out the imitations for sale once demand rockets. Earlier this year, for example, Kim Kardashian stepped out in a dramatic, cut-out vintage dress from Thierry Mugler's 1998 archives. Less than 24 hours later, fast fashion brand Fashion Nova posted an identical copy of the dress retailing for just $50.

The fashion world watchdogs behind popular Instagram account Diet Prada noticed the suspiciously fast timing, and soon came across evidence of a photoshoot of the site's Mugler imitation were dated 14 February, which was four days before Kim wore the gown in public. In fact, the original file of the photos was labeled "Kim dress," though the product name was later named "Winning Beauty Cut Out Gown” when put up for sale the site.

Despite denying these claims, it looks suspicious, and Diet Prada pointed out that Kardashian’s family members—Kris and Kylie Jenner—had also officially partnered with Fashion Nova before, “so the family connection is there”. It’s a murky world.

Designer Plagiarism: Case studies

Gucci vs. Forever 21

2016 saw the beginning of the “Battle of the Stripes,'' as the media called it: a series of lawsuits between Gucci and Forever 21 that went on for two years.

Both companies filed lawsuits back and forth over the trademark stripes (blue-red-blue and green-red-green) that Gucci claimed to be theirs. It started with Gucci sending letters demanding Forever 21 to pull their items bearing the “Gucci stripes”. Forever 21 responded saying that “many clothing and accessory items adorned with decorative stripes coloured blue-red-blue or green-red-green are sold by countless third parties”, citing brands such as Louis Vuitton, Balenciaga, Tory Burch, J. Crew and Urban Outfitters. After two years of both parties winning various rounds of legal wrangling, in 2018 they settled the matter for an undisclosed sum.

Chanel vs. Amazon sellers

In 2017, a California federal judge ruled in favour of Chanel, entering into a default judgment against approximately 30 sellers who were selling fake-copies of Chanel logoed-items through Amazon. The French fashion house previously sought two million dollars in damages from each seller for each counterfeit trademark, after the seller's digital stores had been suspended from Amazon and requested their stores be permanently removed from the site. However, the court slashed this amount to 100,000 dollars leaving, the fashion house with three million dollars in damages.

Moschino vs. Rime

Graffiti artist Joseph Tierney, who goes by the name of Rime, filed a lawsuit against Moschino’s Creative Director Jeremy Scott in 2015. Rime claimed Scott reproduced the artwork from a mural he made in Detroit in 2012 on designs for Moschino’s Autumn/Winter 2015 collection, “without his knowledge or consent”. The same artwork was featured on the dress worn by singer Katy Perry at the MET Gala that year. The case was settled one year later, but the financial agreements between the two parties were not disclosed to the public.

Transatlantic differences

American law doesn’t prohibit brands from copying each other. In the US, according to the American copyright law, the fashion industry is seen as a manufacturing industry rather than a creative one, which is what makes it difficult to take legal action, even when it is a blatant replica that has been made. The US copyright laws include the protection of music, art and literature but does not include fashion. Clothing is seen from a utilitarian perspective, to cover the body, and keep the wearer warm, rather than being creative works of art. However, if it’s possible to show that there are separable original prints, graphics, patterns or other works of art which could exist on their own then it could also be possible to use this loophole to copyright a design.

European designers, on the other hand, have had an advantage as the Design Protection law guarantees the exclusive right to use a design, which includes making, offering, exporting or using the product which a design is applied to. This includes the features of the lines, contours, shape and other materials. When creating an original design in Europe, copyright protection starts immediately without the need for any registration for the first three years by using the Unregistered Community Design (UCD).

Too big to battle? Fast fashion ripping off small brands

The little guy doesn’t always lose. This year it was reported that Kiwi designer Bridie Hall was "deeply upset" when she saw a "poorly watered-down version" of her alphabet letter brush pots sold at H&M as a scented candle holder. Hall wrote to the corporation and then published the email as an open letter on her Facebook page.

Her letter ended with: “I want to ask you; do you not feel that these values and guidelines should not also be extended towards the wider design community and the treatment of their intellectual property?” The company denied copying the design intentionally but did pull the candles off the shelves.

In 2015, Scottish designer Mati Ventrillon was surprised to see pieces the Chanel design team had bought from her “for research” regurgitated on the Chanel runway. After Ventrillon voiced her displeasure about the situation, Chanel agreed to credit the designer as its inspiration in all communications about the collection.

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