October 12, 2016
Originally posted 2018-11-19 11:20:08
By Sindy Wenjin Ding | amdlawgroup.com
First of all, as cyberspace/public domain has become an open gateway, there are no boundaries on geography, time, buyers, identity of sellers, etc., in this invisible cyberspace market. The Internet provides sellers with a means to reach a global audience at low cost, around the clock.[i] Precisely because of the size of market and the anonymity of sellers, it hugely limits the risk of detection for any counterfeiting activities; in the meanwhile, the possibility of marketing a small number of infringing products multiple times can further undermine enforcement efforts.
Secondly, the nature of fast-changeability in Fashion Industry accelerates the pace of any players, further fuels the booming knockoff industry as an indirect result. Some readers may already noticed about that, famous fast fashion line Forever 21 has been sued more than 50 times for allegedly stealing the work of other designers and use the similar fabric prints on its own line. However, it has never lost even once in court! [ii] This may disappoint many designers, since Copyright Law still left fashion designs unprotected (Original prints, original patterns, unique color arrangements, and novel combinations of elements are protected, but the designs themselves are not). In September of 2012, Sen. Chuck Schumer proposed the Innovative Design Protection Act of 2012 (IDPA), a bill that is to amend title 17 United States Code and to extend protection to fashion design, will enable designers to receive copyright protection for 3 years if they (1) are the result of a designer’s own creative endeavor; and (2) provide a unique, non-trivial and non-utilitarian variation over prior designs for similar types of articles. [iii] This move didn’t succeed to pass in the Congress last year, as a result, pushed fashion designs to the edge of design patents, a more lengthy and costly process. Legislators don’t see the artistic side of fashion design but only consider it as a collection of utilitarian items. And that is exactly how fast fashion channels defend for their copied fabric prints and garments, simply because utilitarian items aren’t protected by copyright. (Fashion is more than clothes that keep us warm, RIGHT? OF COURSE!! …Well…)
Thirdly, tremendous demands from various consumers and their various consumption habits need to be met. The booming of online counterfeiting pool cannot live without the similarly sustaining inflation of the demands by consumers, especially who cannot afford to buy genuine luxurious goods. Some arguments like “acceptable knockoff” [iv] is workable solely because it faces different market, different consumers, to me, it is not more than a means to deceive oneself as well as others. The purchasing demands vary widely from budget, occupations, education, level of geographic infrastructures, to the advancement of technology such as Internet covering, and logistics service, etc. Instead of saving half of year’s salary to buy a luxurious item, a big portion of consumers simply pursue the balance of reasonable price and reasonable time. When people regard the logos themselves as the most important things, then it naturally drops down the expectations on other aspects, such as quality, channels, and they cannot even realize the harm caused to the real products. Then it becomes very natural that these consumers are more and more adaptive to shop online, which as a result, converts to huge incentives to online fashion copycats and intellectual property infringers.
As the visible “de-logo-ification” being noted among top brands, and new technology such as 3D printing being injected into fashion design, the battle for fashion brands in the field of intellectual property seems more challenging. To be the winner of this battle, fashion brands not only need sophisticated internal skills to keep the followers from replicating the works, but also want rigorous external legal support, from registration, monitoring mechanism to licensing, investment contracts. Fashion lawyers are your on-going brand watchers, strategy providers and legal advisors. Safeguarding your intellectual property asset by a legal approach means that you definitely have a better chance to protect the creating and commercial value of your brand.
[i] OECD, The Economic Impact of Counterfeiting and Piracy: Executive Summary, 2007, p14
[ii] Jenna Sauers on JEZEBEL, How Forever 21 keeps getting away with designer knockoffs, http://jezebel.com/5822762/how-forever-21-keeps-getting-away-with-designer-knockoffs
[iii] S. 3523 (112th): Innovative Design Protection Act of 2012, https://www.govtrack.us/congress/bills/112/s3523/text
[iv] Rob Walker, The Acceptable Knockoff, The New York Times, December 12, 2004. see http://www.nytimes.com/2004/12/12/magazine/12CONSUMED.html?_r=2&