So You Think They're Knocking Off Your Line
That look is so...familiar.
It’s every new designer’s nightmare.
Hours after opening a store in a new town, buyers from competing lines purchase thousands of dollars’ worth of your brand’s clothes. You fear that your new customers, umm, your competitors, will copy your line and sell it a cheaper price.
The story is common enough in the fashion industry. I recently received an email from a brand venting about how this scenario happened to them. Unfortunately, the brand designers were blowing off steam with the email. They didn’t want to publish a story and they didn’t want the brand name to be used.
Since Apparel News reporters hear this story a lot, I called Doug Lipstone, a longtime apparel industry attorney with the firm of Manning Kass, Ellrod, Ramirez, Trester LLP. I asked what kind of protection a designer could getin this situation.
Lipstone said there’s nothing illegal when competitors purchase each other’s products. Butlaws could be broken when a designer’s garment -and all of the details of the garment - are exactly reproduced but sold under a different name.
One law is copyright infringement.“Copyright protects the creative elements of the design so it is the first line of defense for designers,” Lipstone said. “ But copyright does not protect the utilitarian elements of the garment, such as cut. So savvy competitors try to avoid copyright infringement by taking only those elements of the design that are not copyrightable.”
“The real problem with copyright infringement litigation is that it is so fact intensive that it winds up being enormously expensive.In fact, it is not unusual that the cost of the litigation would exceed the potential award. It’s the sort of fight a company would have to be willing to undertake simply for the principle of the matter,” he said.
Other fashion labels have sued retailers for trade dress infringement. It’s the theorythat certain details of a product are universally recognized, such as the shape of a Coca Cola bottle. Trade dress theory states that anyone copying a universally recognized shape will confuse consumers and siphon off revenues from the company that originated the look of a certain products.According to Lipstone, trade dress also is hard to prosecute. “The plaintiffs must be able to prove that consumers recognize the elements of trade dress, and that they identify products containing those elements as coming from the plaintiff.”
Expect Apparel News to revisit the subject again…and again.
