The gospel according to Forever 21 (Guardian)
“This is the American fashion chain run as a family business, the chain that, thanks to its “pile very high, sell very cheap” operation, has been a phenomenal success, with profits (in 2008) of $135m despite the fact that nothing it sells costs more than $65.”

Mulberry Tops Fashion Retailers on Sales Boom (Bloomberg)
“The 40-year-old British luxury-handbag maker, is the world’s best-performing fashion retail stock over the past year… Investors are betting Mulberry…will join the likes of Burberry Group Plc as an iconic luxury brand.”

Designs on Doha (FT)
“Muslimah dress restrictions have paved the way for an accessories boom in the Middle East. For affluent young women here, however, designer accessories are not symbolic of money or aspiration but are simply the norm. So they increasingly seek out unfamiliar territory in the form of emerging designers.”

Sitting in the lap of luxury (China Daily)
“While consumers in Japan, the United States and Europe are scrimping on luxury goods, the swelling ranks of big spenders in China are taking in whatever the “haute” houses in Paris or Milan can serve up… Luxury brands feel no constraint in boosting their prices to cover rising costs and foreign exchange losses.”

Designers Revisit Copyright Protection (On the Runway)
“…Five years into a campaign by the Council of Fashion Designers of America to enact some sort of protection for original designs…One of the biggest differences in the new bill is that designers would have to prove that a copy is “substantially identical” to their originals, rather than “substantially similar.”

Canal Street AF1, created to drive counterfeit awareness | Source: Kicks on fire

Copyrighting Fashion: Who Gains? (NY Times)
“Paradoxically, the payoff from free copying has been enormous.  The fashion cycle turns faster, and the industry gets richer – and creates new designs more frequently. So why on earth would anyone want to change that?”

Luxury brands wrest back China market, eye smaller cities (Reuters)
“Many piled into China over the last decade, pairing with re-sellers and joint venture partners, but with so much at stake, they are severing these ties and bringing their own considerable financial and marketing muscle as well as expertise to China.”

Lanvin to Make Clothes for H & M (NY Times)
“Lanvin, one of the oldest Paris fashion houses, announced today that it will do a collection this fall for H & M. People can have their first look at the collection on Nov. 2, in a film that will be shown on hm.com. The clothes will go on sale Nov. 23 in 200 H & M stores worldwide.”

Esprit to Double China Sales After Decline in European Revenue (Business Week)
“Esprit Holdings, the biggest Hong Kong-listed clothier, aims to at least double China sales in the next five years after reporting an 11 percent drop in full-year profit. The stock fell the most in three months.”

Should John Lewis revamp their fashion? (Telegraph)
“The department store has just announced a revamp – the word alone will send a shiver down the spines of its fans – with the aim of becoming genuinely fashionable. Why on earth does Britain’s Favourite Retailer need to get groovy?”

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?

Applying intellectual property rights (IPRs) – like copyright and design right – is tricky when it comes to fashion. Generally speaking, IPRs are granted to the author or creator of a work to reward investment and encourage creativity with a monopoly right. But IPRs mustn’t unreasonably restrict the ability of others to develop new ideas and produce new works, so the scope of the monopoly is limited in some way, usually by time. The scope of copyright protection depends on the depth of originality of the work, while the scope of design rights depend on how novel the design is compared to the “state of art.” But because many fashion items have certain fixed parameters — a dress must fit the body, a bag must have handles — there are substantial limits on the legal protections available to designers.

Furthermore, it can be difficult to prove claims of copying in court, because the legal process involves a subjective comparison of the copy and the original by a judge trying to put himself in the shoes of a typical customer. Indeed, the majority of cases are settled out of court, leaving the industry with little precedent on which to build legal certainty.

Blatant copycats like counterfeiters mustn’t be tolerated. In these cases, a purposeful law is largely in place in the European Union, though efforts to facilitate enforcement would be welcome. But the trickier issue is how to deal with what the fashion industry calls ‘inspiration.’

Fashion is an extremely fast-paced business, with very short periods for recouping costs. At first, this would seem to bolster the case for stronger, short-term legal protections against stolen ‘inspiration.’ But on closer inspection, these kinds of copycats can actually contribute to the creativity and innovation that drives the industry.

Indeed, we saw signs of creative inspiration all over the Spring/Summer 2010 shows: Was the beige ruffled dress from Valentino inspired by the white dress Viktor & Rolf presented in their Spring Summer 2006 collection? Was Jason Wu’s violet dress with a black waist band inspired by the violet dress by Alber Elbaz for Lanvin Spring Summer 2008?

We also see copying on the high-street, with H&M, Zara and others quickly reproducing high fashion trends. However, one could reasonably argue that this simply gives affluent consumers more reason to buy new and different things, which puts more pressure on fashion houses to innovate, driving the industry forward.

Certainly, this system of inspiration can be seen as a positive — even inherent — part of the fashion industry. But it should operate on fair terms.

Here, perhaps fashion can learn a thing or two from the music industry. With music, ‘collecting societies’ ensure that artists and rights owners are fairly remunerated when their works are played or — more relevant to fashion — sampled.

This type of system could be tailored to the fashion industry. For example, the “sampling” of a fashion design could go through a society that’s specifically set up to collect and distribute remuneration across Europe. Such an approach would not grant a right of reproduction, but allow designers, fashion houses, artisans, and others to draw inspiration from each other on fair terms.

Furthermore, why not recognize “moral rights” for fashion designs? As well as economic rights, copyright law grants something called a “moral right.” This is essentially the creator’s right to attribution by name when his work is copied.

Moral rights are not currently granted by design right law, but in the world of computer software development, “open source” licenses often contain attribution of authorship. Adopting a similar concept for the fashion industry would obligate “samplers” to not only pay a fee, but give fair attribution to the original designer, channeling potential customers towards the source of the design.

If last century’s strategy of strict controls on fashion IP is failing, perhaps an “open source” system that acknowledges and promotes the sampling of inspiration based on fair remuneration and attribution could be the answer for the next century.

Hanne Melin is a competition and IP lawyer based in Brussels.

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.

The fashion industry is currently fighting two battles on the intellectual property front. The first is against counterfeiters exploiting trademarks and logos. The second, more complicated battle is against those not-so-imaginative designers from within the industry who are simply aping the designs of their peers. This second fight is the one that is most harmful to creativity, investment and reputation. The main weapon against knockoffs is design right protection, but this is not an option if the design isn’t new. So, timeless products without obvious trademarks but which are instantly recognisable — think the classic Hermès Kelly bag — are in a sort-of legal limbo.

In the EU, it is in principle possible to protect a (three-dimensional) shape as a trademark. In practice, however, it has proven extremely difficult to convince courts that a shape has a sufficiently “distinctive character” to be registered. For many years, European courts have been of the opinion that consumers are not in the habit of making assumptions about the origin of products based on their shape. They argue that consumers need a sign or word element to make that connection.

Last week, an EU court restated this long-standing position in a case concerning the shape of the Bounty chocolate bar. The court’s view is basically that the shape of a product must be more than a variant of a common shape of the type of product in question. Only then can it fulfill the function of a trademark indicating origin. Assessing whether that is the case should be done from the point of view of “the relevant public”, described as the “average consumers of the products or services in question, who are reasonably well informed and reasonably observant and circumspect.”

Still, a closer look at this general reasoning makes one wonder if we haven’t actually arrived at a point where at least some consumer groups make the connection between a shape and a product’s origin. While the shape of the Bounty bar might not be sufficiently distinctive for a trademark, the case of luxury products is fundamentally different. These are sophisticated products whose design is born of an intellectual process, tells a message and (if all goes well) transcends generations. What’s more, the very essence of luxury products arguably creates a consumer group that is well above average when it comes to being informed, observant and circumspect about details, other brands and look-alikes.

If luxury consumers are willing to pay for quality in design and shape, shouldn’t it be possible to protect the required and underlying investment and creativity?

Hanne Melin is a competition and IP lawyer based in Brussels

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. 

As Manolo points out, it’s not the first time that Steve Madden has been seen to blatantly copy the designs of other brands.  It really makes me lose all respect for Steve Madden. Perhaps if the company’s executives saw the passion, perseverance and energy that go into innovative designs like these, they would understand why anyone who respects the creative process would be aghast at these actions. It’s unacceptable.

Case 2:  Diane von Furstenberg
On the other hand, sometimes it’s a lot more tricky to prove that designs have been copied.

"What if a very well known designer, one that say, would be on the vanguard of copyright protection (and going as far as lobbying Congress), were to be discovered to have, shall we say ‘dipped a toe into the knock-off pool as well?’ "

This was the note we received from an anonymous reader, lets call her Freda, with the accompanying photo. While Freda didn’t identify any of the designers or brands in question, it wasn’t too difficult to determine that garment B is from Diane von Furstenberg’s Spring/Summer 08 collection, which is in stores now.

What is a lot more difficult to determine is whether there is a case for copying here.  While Freda was very careful to underline that she is not making any accusations at all, she did note that another designer had put out garment A a full year and a half before garment B came out. Freda also asserts that she is not directly connected to either of the two designs in question.

"Throughout my career as both a textile designer and clothing designer and merchandiser, I have been continuously exposed to knocking off and being knocked off," she said.

"But, there is also such a concept as the public domain. Did Gucci do the flat ballet slipper with the big medallion before or after Tory Burch?  Did Prada’s 2-tone ballet slippers so popular a few seasons ago infringe on Chanel’s original concept? Did Versace’s status prints of the 80′s infringe conceptually on Gucci and Hermes?  Where does one draw the line? And if the line is so blurred, why lobby Congress?"

Freda wanted to float these questions in the most "neutral court of public opinion," and we were happy to oblige. It makes for a very interesting discussion, especially when someone  who is representing the CFDA in order to stop copying can be accused of doing the same.

So what do you think? Is this copying or coincidence? And where do we draw the line?