by Victoria Watkins, Esq.
The fashion industry has never been so impacted by technology as it is today. With technology advancing at warp speed, the ease of sharing information has quickly increased. Now, sitting front row at a fashion show not only provides a great seat, but it also provides one with the opportunity to take pictures of the garments – photos that can instantly be sent to an artist who can use them to prep knock-off garments for immediate manufacturing. These knock-off garments could be on their way to the rack before the media coverage of the fashion show is over. This “runway-to-rack” method, which is often employed by fast-fashion brands that are popular with young shoppers, is a detriment to the designers showing their upcoming designs; the fast-fashion brand can get the knock-off garments on the market faster, leaving the original work to look like a copy.
Opinions are split regarding this complex relationship between high fashion and low-cost, ready-to-wear fashion.
Some believe that there is no competition between high fashion brands and ready-to-wear fast-fashion brands because of the separation of buyers; consumers will decide what they want to buy at high fashion prices, and what they deem fast-fashion worthy. So for example, having a knock-off version of a Chanel dress sold at Forever 21 will hurt no one, because the Chanel shopper would never buy the Forever 21 version of the dress, and the Forever 21 shopper would never buy the Chanel version of the dress. Thus, neither Chanel nor Forever 21 is injured by the availability of the knock-off dress in the market, and both make their desired profits (but this is not how the Chanel designer would see it).
Others believe that the availability of a knock-off garment is hugely detrimental to the high fashion brand that originated the garment’s design; the creator’s name in the market will be adversely affected by the confusion that may be caused by the existence of the knock-off (this is especially common when the creator is a rising designer). The knock-off can result in brand dilution and the devaluation of the high fashion brand’s trademarks.
Because fashion design misappropriation is so quick and easy in this age of technology, and because the profits from counterfeits are in the billions, designers must vigilantly monitor their creations in order to protect them from misappropriation. Designers can utilize copyright to protect their patterns, prints, and ornamental designs (such as original belt buckle designs), and can utilize patents to protect their processes (utility functions, like stone washing jeans). But the best form of protection for fashion designers today is actually trademark. Trademarks never expire as long as they are being used in the market, and they show their protective nature to consumers at every point of public encounter. A properly-utilized trademark notifies consumers of the source of the goods and of the quality they should expect from the goods. Proper and consistent use of a brand’s trademark will help consumers spot fakes. Placing the brand with its trademark in the appropriate channels requires heavy vigilance, particularly today, in the era of the “instant internet.” With technology acting as both a friend and foe of designers, trademarks can be a key to keeping products from being copied.
Recently, there has been an effort to expand the applicability of copyright protection in the fashion industry. Just this past September, U.S. Senator Charles Schumer filed the Innovative Design Piracy Act (IDPA). This bill is a successor to prior efforts to offer federal copyright protection to unique fashion designs. The aim of the IDPA legislation is to protect designers (high fashion designers, as well as those who are just starting out) from the Chanel/Forever 21 situation discussed earlier. The IDPA legislation would offer three years of protection for fashion designs meeting a high bar of creativity. While opponents of the IDPA legislation claim that this kind of copyright protection would lead to a flood of litigation, proponents claim that it would work to combat the billion-dollar counterfeit fashion industry. Surely there’s great benefit in the latter.
Greater copyright protection for fashion designs would help curb the online knock-off market, as many retailers of knock-offs would be quickly hit with $5,000 – $10,000 penalties. Designers could more easily monitor and protect their designs, especially once awareness about the IDPA and its provisions became widespread. As of now, the IDPA bill has reached the U.S. Senate floor and it could see a vote before the end of this Legislative Session. It would then face a hearing and vote in the House of Representatives.
As technology continues to make our lives easier in many ways, it works just as fast at presenting challenges in many facets of life, leisure, and business. In a world where we’re all connected instantly, savvy fashion lawyers who are familiar with the benefits and detriments of technology and social media are more crucial to the fashion industry than ever.
Victoria Watkins is a legislative attorney for the City of Chicago. She also writes B.A.F.F.L.E.D., a lifestyle blog, highlighting fashion, law, entertainment, beauty, and so much more.