Some industries are more prone than others to having their designs copied and sold on cheaply. The fashion industry has the dubious honour of being near the top of the list. But why? Instead of sitting back and waiting for the next haute couture design to be transformed into another high street bestseller, the world’s leading fashion houses could take action to protect their new collections.
As London Fashion Week continues (to February 17), fashion designers preparing to send their latest creations sashaying down the city’s catwalks should be aware that today’s copyists are quicker and better than ever before. The minute a model sets foot on the catwalk, a copycat design is already being sketched; the transition from sketch to sample is quicker than a lightning costume-change and, within a matter of weeks (sometimes, days) the copy is in production and brightening high street windows.
Surprisingly, to date there have been relatively few high profile complaints from designers about high street “knock-offs”. It’s almost as if the industry is resigned to the inevitability of lookalike designs; for some, such imitations may even be regarded as flattery.
Fashion magazines that cheerily print features advising consumers where to buy versions of designer classics on the cheap do not help the situation.
Fashion houses need to think differently about their work and to take steps to protect their innovations. What other industry would happily invest in the design, creation and launch of a new product, only to allow competitors to produce low-cost copies unchallenged? In the world of intellectual property protection, we have a saying: “What’s worth copying, is worth protecting.”
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However, at last there are signs that fashion designers are wising up and that intellectual property matters are being afforded much greater consideration. Last year Topshop was forced to withdraw its yellow dungaree-dress from sale after a complaint from the French fashion house, Chlo?; an undisclosed sum in damages was paid by the high street retailer.
Jimmy Choo is another high-profile brand that pursues rigorously those high street stores it believes to have copied its designs. It recently obliged Marks & Spencer to withdraw a £9.50 handbag that was considered too similar to Jimmy Choo’s Cosmo bag, which costs about £495. The brand also took action against New Look for infringement of a shoe design that resulted in the high street retailer paying about £80,000 in damages.
The companies that create luxury designer goods are not the only ones that seek to prevent budget imitations of their garments and accessories. In recent years, the high street retailer Monsoon has secured damages from Primark for selling replicas of skirts, trousers, scarves and bikinis. After all, the protection of designs is not solely the interest of fashion brands with large budgets.
At the end of 2007 a decision issued in the case was fought between the Irish retailer Dunnes and Mosaic Fashions, a company that represents such well-known stores as Karen Millen, Coast and Whistles. Dunnes was found guilty of infringing intellectual property rights. The decision led to a shirt, based on a Karen Millen creation, being withdrawn from sale.
While it is still rare for such matters to reach court, as most companies prefer to settle without an admission of liability, it seems that designers and retailers are becoming more vigilant. They are starting to appreciate that high street copies can have a significant impact on the value and reputation of their business and may result in customers choosing to spend their hard-earned money elsewhere.
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It is relatively simple for fashion houses to protect their designs before they appear on the catwalk. Most designers are aware that “unregistered” rights, such as copyright and unregistered design rights, already exist in their initial drawings and articles and they may believe that these rights provide sufficient protection against copiers. However, such unregistered rights are unlikely to be sufficient to stop imitations appearing on the high street.
In order to ensure sufficient protection for the their creations, designers should seek register protection. The process is simple and cost effective and is available for a variety of design attributes, such as shape and pattern, as well as for accessories, including jewellery, bags, shoes and belts.
However, registered design protection is only available for designs that have not been disclosed to the public. Fashion designers should therefore seek protection well before designs hit the catwalk.
It may be too late for this year’s London Fashion Week, but it is vital that leading fashion houses and retailers start to think carefully about how they can prevent others from taking unfair advantage of their investment in the future.
The author is a partner and trademark attorney at Withers & Rogers LLP