By: Caroline Smith
Junior Associate Editor, American Journal of Trial Advocacy
In a world of Instagram influencers and fashion bloggers, knock-off designer looks seem inevitable. However, with retailer giants such as H&M, Zara, and FashionNova producing new collections seemingly overnight, how many of these designs are actually “original?” The fashion industry is no stranger to trademark litigation; however, fashion designs are not shielded by the same copyright laws as other creative practices. While a fashion company’s label and logo can be trademarked, the actual design of the garment or accessory cannot, making “fast fashion” copycats almost legally untouchable. Fast fashion is defined as “an approach to the design, creation, and marketing of clothing fashions that emphasizes making fashion trends quickly and cheaply available to consumers.” Unlike the historic fashion houses of Europe, the American fashion designer as an occupation is a fairly new concept. In the 1970s when copyright laws were established, the United States primarily housed only clothing manufacturers—not clothing designers. As no major fashion houses existed at the time, the United States did not extend copyright laws to protect fashion designs like many European nations.
While outdated laws seem to leave designers behind, other avenues such as patents and trade dress protections can protect their precious work from copycats but at a very high cost. “Inherently useful items,” such as clothing and bags, are not protected by copyright law. A designer or fashion house may patent a specific fabric or print on a garment, but no legal protection exists for a very similar design being made with similar material. While an opportunity does exist for the designer to patent the actual design or sketch of the intended garment or accessory, this option is not practical for the design industry. In the amount of time a design patent takes to process, a typical fashion designer will be working on their fourth or fifth collection since the design of the item with the intended patent. In other words, a “fast fashion” company may attend a runway show of a major designer, take a picture of that design, source a similar fabric, build a similar garment, and have that garment on shelves before the major designer’s runway collection even goes into production for retail sale without violating any trademark or copyright laws. Product configuration trade dress is an additional option for designer protection but is very difficult to establish. To achieve a trade dress registration, the product design must be so recognizable that the average consumer associates the design with the brand itself.
A successful example of trade dress registration honored by the courts in fashion industry litigation is the red sole of Christian Louboutin stiletto heels. In 2012, the Second Circuit held Louboutin’s signature red soles were in fact distinctive to the brand and recognizably associated with the footwear line by the average consumer, and the court honored the registration of the trade dress. However, not all major fashion brands with signature marks are successful in court. In 2017, Gucci sent multiple cease and desist letters to the fast-fashion powerhouse of Forever 21 regarding their use of Gucci’s signature blue-red-blue stripe pattern and green-red-green stripe pattern. Gucci has held some form of trademark on the two patterns since 1988 for various goods. At the time of the cease and desist letters, Gucci had recently applied for a trademark to extend protection of their signature stripes to apparel. In a bizarre turn of events, Forever 21 actually filed suit against Gucci, not the other way around, as one would expect. Forever 21 sought a declaratory judgment preventing Gucci from obtaining the pending registrations, claiming that the stripes were generic and not associated with the brand. The court seemed to side with Forever 21, and Gucci’s motion for partial dismissal was denied. The two fashion empires settled out of court in late 2018. While many fashionistas found the copycat designs to be blatant fashion theft, the court simply saw stripes.
Kim Kardashian West found recent success in court after fast fashion brand Missguided replicated designs from her fashion label, Kimsaprincess, and her husband Kanye West’s fashion label, Yeezy. Kardashian not only accused the brand of knocking off her designs but also promoting its product with her image as well. While the court awarded Kardashian 2.7 million dollars in the suit and banned Missguided from using any of the Kardashian trademarks in its business practices, small independent designers most likely would not see a similar outcome. The original designs of small designers certainly do not meet the criteria of recognition required for trade dress registration, and most small designers lack the financial means to afford lengthy litigation. Independent designers cannot compete with large, fast fashion giants and, unfortunately, are often edged out of the business entirely simply because someone else stole their original work. In 2012, members of the Council of Fashion Designers of America attempted to pass legislation to protect original fashion designs. The bill provided that if a designer went through the steps to prove that his design was in fact innovative, the designer would be granted a three-year protection for their original work. The bill never came to a vote. As put by one project coordinator from the Fashion Institute of Technology, “Congress sees the fashion industry as frivolous, an area that doesn’t need protection . . . They don’t see ramifications, that copying hurts the industry and makes it difficult for designers to emerge.”
Despite this seemingly uphill battle for designers, recent accounts of the negative environmental and humanitarian impacts of the fast fashion industry paired with increased media attention of the industry’s profit from replica designs may lead to a positive change to protect the art of designers once and for all. As fast fashion clothing is not built to last, the majority of these garments end up in landfills. According to a recent report by Business Insider, “the fashion industry produces 10% of all humanity’s carbon emissions, is the second-largest consumer of the world’s water supply, and pollutes the oceans with microplastics.” The fashion industry has a dark history with slave labor, sweatshops, and inhumane working conditions. In recent years, the fast fashion business has returned to these practices overseas by paying laborers pennies on the dollar in inhumane conditions.
Recently, trend reports and lobbying groups have shown evidence that consumers are paying attention to the environmental and humanitarian impacts, and the overpowering fast fashion houses may soon suffer the consequences of their practices. 2019 proved to be a difficult year for fast fashion giant, H&M, which closed stores across the country and reported billions of dollars of unsold inventory. Furthermore, the dirty little secrets of fast fashion replicas are increasingly exposed through social media. “DietPrada,” a site dedicated to exposing unoriginal work, currently has over 1.7 million followers on Instagram. While the law may not have caught up with fashion design, perhaps talent and style will outweigh trendy fashion in the eyes of the consumer. After all, “fashion fades, but style is eternal.”
 Mary Hanbury, Zara and Forever 21 Have a Dirty Little Secret, Bus. Insider (Mar. 6, 2018, 7:45 AM), https://www.businessinsider.com/zara-forever-21-fast-fashion-full-of-copycats-2018-3.
 Fast Fashion, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/fast%20fashion (last visited Feb. 2, 2020).
 Chavie Lieber, Fashion Brands Steal Design Ideas All the Time. And It’s Completely Legal., Vox (Apr. 27, 2018, 7:30 AM) https://www.vox.com/2018/4/27/17281022/fashion-brands-knockoffs-copyright-stolen-designs-old-navy-zara-h-and-m.
 Hanbury, supra note 1.
 Julia Brucculieri, How Fast Fashion Brands Get Away with Copying Designers, Huffington Post, (Sept. 4, 2018, 5:45 AM), https://www.huffpost.com/entry/fast-fashion-copycats_n_5b8967f9e4b0511db3d7def6?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAACGkDy6stmHKAo1r7IfWEplRo9e6m81MGEVYnSMRWwz-SgquJWUC_cdgJFzu5XM_UMQbivZnHSrSHCQ_m_iUv-5VmKMvMENidE6xsGvYQV28uJ0Fj6rDEpB2rD-SzIaN-gTkW4m-ObJn6Fgm1pv4fvxpJCYvMNQ-9fD4votYGyxc.
 Lieber, supra note 4.
 Hanbury, supra note 1.
 Lieber, supra note 4.
 Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings S.A., 696 F.3d 206 (2d. Cir. 2012).
 Id. at 226-27.
 Forever 21, Inc. v. Gucci Am., Inc., No. CV 17-04706 SJO, 2018 WL 5860684, at *1 (C.D. Cal. Feb. 9, 2018).
 Rachel Lubitz, Forever 21 and Gucci Are in a Legal Battle Over Some Multi-Colored Stripes, Mic (June 28, 2017), https://www.mic.com/articles/181057/forever-21-and-gucci-are-in-a-legal-battle-over-some-multi-colored-stripes.
 Forever 21, Inc. v. Gucci Am., Inc., No. CV 17-04706 SJO, 2018 WL 5860684, at *2 (C.D. Cal. Feb. 9, 2018).
 Gucci, Forever 21 Settle Battle over Stripes, Fashion Law (Nov. 21, 2018), https://www.thefashionlaw.com/home/gucci-forever-21-settle-battle-over-stripes?rq=forever%2021.
 See generally, Brucculieri, supra note 8.
 Sahar Nazir, Is the Copycat Economy Damaging Mid-Market Retail?, Retail Gazette (July 17, 2019), https://www.retailgazette.co.uk/blog/2019/07/is-the-copycat-economy-damaging-mid-market-retail/.
 Lieber, supra note 4.
 See Tatiana Schlossberg, How Fast Fashion Is Destroying the Planet, N.Y. Times (Sept. 3, 2019), https://www.nytimes.com/2019/09/03/books/review/how-fast-fashion-is-destroying-the-planet.html (stating that “[m]ore than 60 percent of fabric fibers are now synthetic . . . [and] will not decay.”); Chenu Alexis, Diet Prada: Instagram’s Designer Copycat Police, Fashion Network (Oct. 23, 2017), https://us.fashionnetwork.com/news/Diet-prada-instagram-s-designer-copycat-police,882862.html (Diet Prada, an Instagram account, “highlight[s] publicly the lack of originality from certain designers in naming (and shaming) the most obvious copycats seem on the recent runways.”).
 Morgan McFall-Johnsen, The Fashion Industry Emits More Carbon Than International Flights and Maritime Shipping Combined. Here Are the Biggest Ways It Impacts the Planet., Bus. Insider (Oct. 21, 2019, 11:22 AM), https://www.businessinsider.com/fast-fashion-environmental-impact-pollution-emissions-waste-water-2019-10.
 Schlossberg, supra note 33.
 Sanford Stein, How Could Changing Consumer Trends Affect Fast-Fashion Leaders H&M And Zara?, Forbes (Feb. 10, 2019, 11:41 PM), https://www.forbes.com/sites/sanfordstein/2019/02/10/how-could-changing-consumer-trends-affect-fast-fashion-leaders-hm-and-zara/#2c7f56af6f48.
 See generally, Alexis, supra note 33.
 Quote attributed to Yves Saint Laurent.