The fashion industry is immersed with new designs every day, month or season. Consumers are generally spoilt for choice when it comes to picking out items of clothing. Some people are brand conscious and want to support a particular designer or brand; However, the industry is also flooded with counterfeits and knockoffs. In the fashion world, there is a thin line between counterfeits and knockoffs.
Counterfeits are basically imitations of other products that are being passed off as authentic.[1]
Knockoffs
Knockoffs are products that resemble another product, but they are not exactly identical. Knockoffs or Fast fashion are about making trendy clothes quick and cheap.
Evidently counterfeits and knockoffs are not the same. On the one hand, counterfeits are illegal because they are low-quality products that are sold under a third party’s name or brand without permission, thus infringing on another party’s IP (trademark, trade dress or patent); While on the other hand, knockoffs just look like the original design.
Why are knockoffs legal?
Knockoffs are mostly legal in many countries due to their copyright laws. The US and South African copyright laws do not necessarily extend protection to clothing designs.[2] One reason for this is that clothing items are only seen as utilitarian, meaning that clothes (in the eyes of the law) only serve to cover the body and keep us warm. Clothes are seen more as being functional rather than aesthetic and thus clothes do not warrant copyright protection. However, European countries like France, Italy, Germany etc., have long extensive copyright laws that explicitly protect clothing designs.
But this doesn't mean that countries that do not explicitly protect clothing designs leave designers without any protection. Designers may protect their work in the following manner:
1. Patents/Design patents are likely the best fit for fashion designs, as they protect the “new, original, and ornamental design for an article of manufacture.” [3]
2. Company names, slogans and logos can be protected under trademarks
3. Brands can protect the trade dress of their product. A trade dress is a kind of trademark in which a design is deemed so recognizable that the average consumer associates with the brand. Louboutin red soles are an example of a trade dress.
Obtaining patent or trademark protection takes time, and occasionally designers do not follow that route of protection mostly because the fashion industry is very time conscious as trends come and go. In design law, a design needs to have absolute novelty (amongst other requirements) to gain protection. Meaning that as a designer you can only release your design only after your design has been granted protection at the Patents Office[4], and that might take a year or two. The current forms of protection do not necessarily suit the fast-paced world of fashion.
Conclusion
I appreciate the legal distinction between counterfeits and knockoffs, but I sympathize with the designers because they somehow still lose in both scenarios.
[1] https://wwd.com/business-news/retail/counterfeit-knockoff-replica-legal-10437109/
[2] https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m
[3] https://www.thefashionlaw.com/how-do-fast-fashion-retailers-get-away-copying-high-fashion-brands/
[4] subject to a 6 month period of grace from the “release date”, ie. date of first disclosure
*All images are found on google images
