By Samantha Orwoll.
Fast Fashion Industry
Fast fashion brands, such as Forever 21, ZARA, and ASOS, create a nearly constant stream of clothes. The brands promise the latest trends at affordable prices. Rather than create seasonal collections, they produce new offerings weekly and have thousands of styles available for purchase online or in stores at any given time. As a result, the retailers boast billions of dollars in sales.
Infringement
But the path to financial success has not been without lawsuits. Perhaps designing so many clothes means that eventually a style will look like something that has already been created or, as suggested by plaintiffs in infringement cases, the companies cut costs by intentionally copying other designers. Two of the fast fashion giants, Forever 21 and Fashion Nova, have been hit with copyright or trademark infringement suits in the last year.
One such case that made headlines was luxury brand Versace’s suit against Fashion Nova for copyright and trademark infringement. In November of 2019, Versace filed a complaint against Fashion Nova alleging that Fashion Nova had copied the prints on two Versace dresses. Additionally, Versace alleged that Fashion Nova copied an iconic jungle print dress worn by Jennifer Lopez. Versace asserted that the copying was “plainly a deliberate effort to exploit the popularity and renown of Versace’s signature designs, and to trade on Versace’s valuable goodwill.” The complaint also stated that Fashion Nova has been sued by designers for infringement eight times since 2013. Similarly, Forever 21 has faced “no small number” of lawsuits alleging infringement from companies such as Adidas, Puma, and Gucci.
The Impact on Designers
Versace is a successful company that has the resources to pursue such a suit; however, many smaller designers will not be able to. The question then becomes, if intentional copying is occurring, what obstacles might a smaller designer face in bringing a suit against a fashion giant like Fashion Nova? Besides the clear difference in legal resources, the fashion industry creates unique challenges to asserting intellectual property protections. Unlike a car manufacturer which may release a few models every year, clothing companies may produce hundreds, if not thousands, of styles annually. With that many products, there will naturally be some that look alike. Additionally, fashion itself is driven by trends, which necessarily involve the sharing (or copying) of ideas. There is likely a difficult grey area between following a trend and being guilty of infringement. The uncertainty surrounding these differences as well as the costs of unsuccessful litigation likely deter many designers from pursuing claims. Therefore, if smaller (and larger) designers are to be protected, the law may need to develop clothing-specific tests for claims of trademark and copyright infringement. Developing such tests will certainly be a challenge, but proper tests will be uniquely adapted to the trend-following nature of the fashion industry, while also strongly protecting designers’ brands and original ideas.