Fashion’s copycat problem is a huge issue that serves to undermine the originality and creativity of artists, and commonly sees small business owners ripped off by larger brands, who can produce clothes in mass quantity, undercutting lesser-known brands in price by reducing costs in the supply and production process, having a detrimental effect on the success of small businesses. Here, Eleanor Drury looks at the many local brands who have fallen victim including Club de Padel, Mars the Label and Hikerdelic, and explains how smaller brands can ensure that they have adequate protection from this kind of forehand smash.
We often see that unfortunately, many small businesses are not adequately protected in this area due to lack of knowledge and legal costs, and an imbalance of power against retail and brand giants.
Design rights fall within Intellectual Property (IP) and can be protected by registered or unregistered trademarks which provide a degree of protection as these rights can be enforced, usually by an injunction which removes the ‘fake’ item from sale and creates a potential claim for damages arising from loss of revenue out of the breach of the trademark.
Some rights can be acquired without the need for any registration. Trade secrets; material commercial information that gives businesses a competitive advantage are protected by the way that the information is handled. Copyright also arises automatically, protecting original literary, dramatic, musical and artistic work, including illustration and graphic design, affording a lot of protection for the original designer. For garments, copyright however remains a complicated issue as the item must be perceived as having a degree of ‘artistic craftsmanship’, and the courts have traditionally been reluctant in their interpretation and application of this.
To best retain authenticity and brand identity, fashion entrepreneurs should take steps to ensure protection of their IP rights through registered means, providing a stronger avenue of legal protection. Trademarks can be registered for words, logos, and even colours, and are used by businesses to grant them exclusive rights, and to identify their goods or services and distinguish them from competitors. Patents and design rights on the other hand, grant exclusive rights for an invention or its appearance, and allow the owner a monopoly over the same. Having these registrations in place provides small businesses with a safety net for their designs and a legal framework to pursue any infringement claims, encouraging innovation within the industry.
Larger fashion brands who have successfully won IP disputes include Christian Louboutin, GUESS and Nike. Each evidencing that these rights have considerable financial and reputational value due to the competitive and often uncreative nature of the fashion industry, made worse by consumerism and fast fashion.
To protect themselves in fashion’s ‘copy and paste’ era, smaller brands should follow suit and protect their rights in the first place, and then take action if need be to enforce them.
[This blog is intended to give general information only and is not intended to apply to specific circumstances. The contents of this blog should not be regarded as legal advice and should not be relied upon as such. All liability is excluded Readers are advised to seek specific legal advice.
