How common is copyright infringement in fast fashion?

As Philip Partington, Partner in Intellectual Property at JMW Solicitors explains It is a long-standing practice for fast fashion companies to draw inspiration from leading industry names, and in certain instances, to replicate specific clothing items. This enables these companies to provide fashionable clothing at lower prices than their designer counterparts, albeit existing in a legal grey zone with occasional overstepping of boundaries.

Replicating popular trends is one thing, but some independent designers have recently suspected fast fashion brands of directly taking their work to sell it, or replicating unique designs that warrant copyright protection. Here, we clarify the components of a design that qualify for protection, the various legal aspects involved in copyright infringement cases in the fast fashion sector, and how smaller businesses or designers can protect their work from infringement.

Is the fast fashion sector violating the law?

Fast fashion flourishes by deriving inspiration from popular designs – or sometimes reproducing them directly. This has always been the norm, leading to numerous allegations of intellectual property infringement over the years. Companies such as Forever 21, Fashion Nova, ASOS, and Shein have all faced legal proceedings for copyright and trademark infringement when their designs resembled those of prominent designers. Despite this, the practice continues and may be entirely legal in many situations.

Several factors influence the legality of imitating a design and it can be something that is difficult to define. The primary factor being the limitations of copyright rules in extending protection to artistic works. In the context of apparel, copyright protection only applies to specific design elements that are unique. Anything related to a garment’s function, like the shape of a t-shirt, is not eligible for protection, as it is neither distinctive nor original to a single product.

A unique pattern or colour scheme that characterises an item may be eligible for legal protection, though not always. For instance, while the iconic red-soled shoe is widely associated with designer Christian Louboutin, a French court ruled in 2012 that a Zara imitation did not infringe on the designer’s intellectual property rights.

There are no definitive guidelines for applying this principle, however, and it can be ambiguous. Consequently, it is crucial to consult an intellectual property lawyer for advice before making a decision. With their expertise, they can help determine whether your intangible assets – including designs, logos, company and product names, and more – infringe upon someone’s intellectual property rights. They can also assist you in registering your intellectual property and monitoring for infringement by others to ensure that your assets remain protected.

The fast fashion sector often capitalises on this ambiguity, enabling businesses to emulate high-fashion trends without infringing copyrights by closely reproducing original works within the limits set by copyright law.

How can smaller designers react?

The fashion industry’s constant need for innovation has prompted designers to explore a broader range of sources for inspiration. In some cases, this has involved smaller designers whose work garners attention on social media platforms like Instagram.

The most crucial step to take if you are concerned about potential infringement of your work – whether you are a small designer or a multinational corporation – is to understand how copyright law applies in such situations. This will enable you to identify instances of copyright infringement (as legally defined) and take appropriate action.

How can I identify copyright or trademark infringement?

As previously mentioned, it is often legal in the fashion world for businesses to emulate designs, hence, while many designers may feel their rights have been violated, this is not always legally accurate. Using the example of a t-shirt featuring a cactus illustration, we will demonstrate the various intellectual property rights that may apply.

Firstly, the concept of decorating a clothing item with a cactus cannot be protected. Intellectual property laws govern the expression of ideas, not the ideas themselves. Thus, anyone is free to design a t-shirt with a cactus on it without infringing upon someone else’s IP rights.

A cactus image would likely be ineligible for trademark registration unless it was altered in some way to make it unique. For example, a cactus design that incorporated a company logo or was arranged into a distinctive shape might qualify for trademark registration. However, without advice from an intellectual property lawyer, it can be challenging to determine the eligibility of a specific mark.

If you successfully registered a trademark for your cactus image, it would be illegal for someone else to print a design with the same cactus or one that was sufficiently similar. However, you should also ensure that your design does not infringe upon any existing trademarks. If someone else already owns a similar cactus as a registered mark, you would be guilty of infringement by selling your design.

An illustration or photograph of a cactus is protected by copyright. This means that it would be illegal to produce a design featuring a specific cactus image, unless:

You created the image yourself
You hired someone else to create the image
You have purchased or licensed the rights from the creator
The image was published under an open licence

In many instances, it would also be illegal to recreate the image or produce a similar version. If you wish to create clothing items featuring a particular piece of artwork, consult an intellectual property lawyer about the possibility of licensing the copyright to the image you want to use.

How can designers safeguard their intellectual property rights?

The most effective way to protect your intellectual property rights is to register any eligible assets as trademarks and monitor for infringement. Intangible assets, such as a logo, company name, or even design elements common in your work, may qualify for protection. This can ensure that you have the legal right to combat infringement. If you sell in multiple territories or markets, you may need to register your intellectual property in each area separately, as these rights only apply to specific jurisdictions.

Unlike trademarks, copyright protection applies automatically, and there is no need to register. Another distinction is that copyright law generally applies internationally, which means that you may be able to take action even if your work is infringed upon outside of your home jurisdiction.