Left: DVF Spring 2009, right: Mercy Spring 2008 | Source: National Post

Today we introduce Legal Patterns, a new series of articles on BoF exploring fashion and the law. Just as design patterns form the foundation of good fashion design, legal frameworks enable fashion businesses to defend their financial interests and protect their designs.

BRUSSELS, Belgium — In the fashion industry, the copycatting of designs is a not a simple issue. Accusations fly in all directions: luxury houses accuse high-street brands; artisans accuse fashion houses; and fashion houses accuse other fashion houses. Indeed, Diane von Furstenberg has found herself on both sides of the issue, submitting copycatted high-street designs by Mango and Forever 21 as legal evidence in court, while herself being accused of copying a jacket designed by the Canadian brand Mercy.

Nor is this a new problem. Since their inception, houses have struggled with fashion espionage. In the past, fashion companies tried to maintain strict control over their intellectual property, not through an assertion of legal rights, but by physically hiding their designs from competitors. In the 1950s, for instance, Christian Dior’s press officer insisted that “all precautions must have been taken to ensure that no member of the profession [e.g. fashion designers, manufacturers, milliners] would be attending” their fashion shows.

Until a few years ago, fashion houses religiously pursued this strategy of strict control. But with the rise of blogging and fast fashion, this approach no longer works. Today’s fashion world is faster and more transparent than ever, blurring the line between what is ‘copying’ and what is ‘inspiration’ and putting new pressure on fashion houses to protect their intellectual property.

Can the law help?

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Hermès Kelly Bag, courtesy of Hermès

BRUSSELS, Belgium — Sometimes, a mere glimpse of a product’s silhouette is enough to tell which designer or fashion house created it: the Chanel No 5 perfume bottle, the toe of a Berluti shoe, the unique shape of the Fendi baguette. Today, there is renewed interest in these kinds of classic products as shape and design have made a return in making a product desirable, especially now when consumers don’t want their products to scream with logos and bling.

As they look for unbranded products that are recognisable for their design, this also raises the question of whether there is adequate legal protection for these more subtle indications of provenance. This will almost certainly reignite a debate for strong design right protection, but it might also mean that the shape of a product is worthy of trademark protection in and of itself.

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At what point does referencing and inspiration turn into blatant copying? It’s a question that is increasingly on the minds of designers — particularly young designers and small brands — who don’t have the legal muscle (read: cold hard cash) and time to defend the integrity of their designs.

In other creative disciplines like music, writing and visual art, it is much easier to defend copying. In fashion, referencing, inspiration, and trends form the backbone of our industry (just check out this long list of adventures in fashion copyright). So, where do we draw the line?

Case 1:  Steve Madden
Sometimes it’s quite straightforward to see what is going on.  A post on Manolo’s shoe blog alerted us to this blatant copy of the Balenciaga sportiletto shoe. Some may find it amazing that anyone would even wear these shoes, but I find it amazing that any company would be so brazen as to rip designs off in this way. 

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