It is surprising that in this tremendous field, ranking conservatively among the first five in the United States, such unregulated and primitive conditions obtain that unreserved pilfering is tolerated and openly permitted.
The leaders of this gigantic segment of our commercial life who have labored so effectively in strengthening the weak spots of their organization, have completed ignored a situation that is eating away at the very roots of its existence. Style and creation constitute the life blood of this multi-billion dollar business. Without them, the industry would fade into obscurity. Yet, for some unknown reason, style piracy is treated more indulgently than much lesser offenses involving deprivation of one’s rights and property.
Samuel Winston, Inc. v. Charles James Servs., Inc., 159 N.Y.S.2d 176, 718 (Sup. Ct. 1956).
“There is no justice in the fashion business,” Karl Lagerfeld once remarked.
Indeed, many clothing designers in the United States would agree. Recent years have seen a proliferation of “fast fashion” chains, offering an array of inexpensive, unauthorized copies of designer clothes. Thanks to digital photography and fast production, these chains can offer nearly indistinguishable copies of a designer garment months before the original even reaches stores.
To make matters worse, these practices are legal. Although intellectual property (IP) law in the United States covers a wide range of artistic works, inventions, designs, and images, it offers effectively no protection for fashion designs.
On one hand, proponents of protection rely primarily on traditional arguments for protecting IP: copyright for fashion designs would encourage greater innovation by ensuring that the profits from a design went to the designer and not to those who merely copied the work. Unestablished designers and labels especially need protection, they argue, as copying stymies their efforts to build a brand. On the other hand, opponents of protection argue that unique features of the fashion industry make IP protection for fashion designs counterproductive. The fashion industry, they argue, thrives on imitation, and IP protection would impede the formation of trends and slow the rate of change in fashions, chilling innovation and hurting the industry.
Much ink has been spilled on IP protection in the context of the women’s fast-fashion industry. Kim Kardashian’s relationship with Fashion Nova, and her lawsuit involving Missguided, is nearly household knowledge at this point (well, at least for me). This article, following a brief discussion of the IP protection available in theory to clothing designers, briefly addresses IP protection—or a lack thereof—in the “Menswear” industry, and touches on considerations for consumers.
A brief overview of IP protection in the United States
Clothing designers can seek IP protection in three main areas: patent; trademark (and trade dress); and copyright.
A patent is used to protect “any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used.” If possible, clothing designers will typically seek a design patent (as opposed to utility patent), requiring the designer to show “novelty, non-obviousness, ornamentality, and non-functionality.” There lies the rub. First, clothing is inherently functional; it serves the purpose of covering the body (for better and for worse). Second, designing an article of clothing that is non-obvious is nearly impossible given the derivative nature of the industry. Finally, even if a designer jumps these legal hurdles, it typically takes the Patent and Trademark Office (PTO) over two (2) years to review each application. By that time, we may yet again be reaching for low-rise, flat-front pants.
A trademark refers to:
any word, name, symbol, or device … used by a person, or … which a person has a bona fide intention to use in commerce and applies to register … to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.
At base, the mark must be distinctive. That is, it must be “(1) inherently distinctive or (2) have obtained distinctiveness by way of acquiring a secondary meaning.” Trademark law provides a great deal of protection for certain types of designs when there is a logo affixed to them and protects the designers from others using the logo or anything substantially similar that would lead to a consumer being confused. Consider, for example, the “Supreme Box Logo Tee.” While trademark refers to a symbol or a name affixed to the article, trade dress offers protection to the overall look and feel of a non-functional product. This includes the protection of features “such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” A distinctive color can be a protected interest in the fashion industry. Tiffany’s aquamarine blue, for instance. But it’s not easy. Off-White’s numerous efforts to seek IP protection for its “signature” red zip-tie highlights the difficulty of obtaining trademark and/or trade dress protection under United States law.
Copyright protection would “offer the most protection,” but currently “is extremely limited.” Section 102 of the Copyright Act provides that copyright protection extends to “original works of authorship fixed in any tangible medium.” Problems for clothing designers arise because this type of protection does not extend to “useful articles,” a category which encompasses clothing designs. Because clothing articles are inherently “functional” and serve the utilitarian purpose of covering the body (again, for better and for worse), it is extremely difficult for designers to find refuge in copyright protection because the bar to prove that their design is “non-functional” is exceedingly high.
The scant IP protections that are available under United States law help to explain the proliferation of certain trends in the fashion industry, i.e., Louis Vuitton placing its logo on, well, just about everything that it makes, Bottega Veneta utilizing its trademarked, signature weave, or Christian Louboutin tending to use lacquered red soles on all of its high heels.
IP Protection in Menswear and Considerations for Consumers
If your eyes glossed over reading the last section, I can summarize it for you briefly: intellectual property protection in capital-M “Menswear” is effectively nonexistent. In an industry where adjectives like “staple,” “timeless,” and “versatile” abound, the vast majority of clothing is inherently functional, non-distinctive, and useful – particularly, from the perspective of the rest of the world. This may, depending on your perspective, create issues.
For example, I would characterize the late Eidos x NMWA cut as distinctive – perhaps even revolutionary – in lieu of what was available on the ready-to-wear market. Since then, less expensive replicas have appeared. Was the Eidos x NMWA cut ever capable of IP protection? Probably not.
Because of this complete lack of protection, we, as consumers, must decide – is this something that is worth protecting? For me personally, I feel that even if the law doesn’t recognize in clothing the same kind of inspiration and creativity that it recognizes in art and literature, I can recognize it myself. And when I do recognize a piece that contains an idea, I want it straight from the person who thought of it, rather than an imitator.
Of course, each person will draw their own boundaries between imitation and development. One person may view, for instance, all garments inspired by U.S. military designs as knock-offs and only want the original vintage pieces. Others may view the same design made in a different fabric as an innovation. These things won’t get decided in court, so we don’t have to agree on them. But it’s part of my appreciation of my own clothes. I enjoy them a little bit more knowing that what I’m wearing came from someone who had an idea.
This article represents the views of its author, who has little training or experience in intellectual property law, and is not legal advice.