If I told you one of these jackets was an authentic design and the other was an imitation would you be able to distinguish the two? Most likely, you would barely be able to spot the differences. However, the jacket on the left is an authentic Chanel jacket, while the one on the right is a copycat. Within the fashion industry, there is a growing issue with the lack of authenticity, in terms of designers copying each other’s designs and stealing their intellectual property, with little to no penalty. In fact, the overall counterfeit market produces $600 billion annually. According to Chavie Lieber, knock-off and copycat products “represent about 7 percent of the global trade, with a revenue that’s nearly twice that of the illegal drug market.” Although trademarks, patents and copyrights do slightly protect fashion designers, these counterfeits still run rampant. Therefore, there is a blatant need to regulate copycat items in the fashion industry—from their conception, to their creation to the end consumer—with the implementation of public policy.
Before presenting a potential policy to quell the crisis of stolen intellectual property and copycat fashion, let’s take a look at the history of the issue.
Because there is little intellectual property protection in the fashion industry, fast fashion retailers often copy designs from high-end, well-known designers and mass-produce them for a fraction of the cost. For example, anyone who is familiar with Zara knows that the Spanish brand is infamous for their imitation creations. In fact, Alexandra Jacobs of The New York Times visited the Zara flagship store in Midtown Manhattan and reported, “my friend tried on, and liked, an Alexander Wangish motorcycle jacket made of leather pounded thinner than a veal paillard, but couldn’t bring herself to buy it. ‘It smells like burning rubber,’ she said.” Clearly, these consumers were able to recognize the lower quality of such a knock-off item.
However, a few regulations do exist to regulate copycat items— such as, copyrights, patents and trademarks. Copyrights apply to “anything that is functional, or has a physical function in the real world,” as stated by Tyler McCall. For example, “Jewelry gets copyright protection, in large part because jewelry is a lot like miniature sculptures and art is copyright” according to McCall. McCall also shares that “two-dimensional designs: fabric prints, jacquard weave and lace patterns” can receive copyrights. Patents, on the other hand, have “to be something that is not only useful, but new or novel to all the world,” according to McCall. However, there is a subcategory of patents, called design patents, which McCall describes as “the ornamental aspect of the functional items.” For example, Alexander Wang has several design patents for his handbags, only because of the unique hardware included. Lastly, McCall explains that “lot of fashion companies and designers default to trademark protection.” McCall further explains that “trademark protection typically can’t protect an entire garment or accessory, but at least can protect the logo or the label.” There is also a special category of trademarks known as trade dress protection. McCall offers Christian Louboutin shoes as an example saying, “Even without taking off the shoe. . . you see the red sole, you know it’s Louboutin; therefore, that red sole can serve as a trademark.” Clearly, these copyrights, patents and trademarks are useful to many designers, but actually contribute little in the overall fight against counterfeit fashion.
Now with greater understanding of the limited protections for fashion designers and their creations, we can examine how imitation fashion affects the economy.
Not only is copying and manufacturing another designer’s creation ethically wrong, it also poses economic threats to the fashion industry. Manufacturing and selling imitation fashion impacts the country where the products are manufactured, the country where the products are sold and the end-consumer. For example, countries that produce copycat goods usually suffer “tax losses, since the counterfeits are normally sold through clandestine channels and counterfeiters are not generally keen to pay tax on their ill-gotten gains,” according to the Organisation for Economic Co-operation and Development (OECD). Additionally, the OECD states that, “Although many consumers believe they are getting a bargain when they buy counterfeits, the actual value of the product is normally much lower. Hence, they end up paying an excessive price for an inferior product.” Looking further into this issue, the mass-production of replica fashion and robbery of intellectual property has grown so much that several law schools have begun to incorporate programs to train lawyers in this field. In June 2015, “Fordham Law School became the first accredited law school to offer a degree in fashion law,” according to Marianys Marte of The Fordham Observer. Fordham University School of Law describes intellectual property as one of “the four pillars of fashion law,” upholding how vital it is to have trained professionals in this subject.
While Fordham University recognizes the need to solve the problem surrounding imitation fashion and stolen intellectual property, a concrete plan to solve this issue must be developed and implemented.
In order to effectively combat the creation and sale of knock-off and copycat fashion, the best plan of action is to establish an International Trade Association, dedicated solely to the fashion industry. According to the Organisation for Economic Co-operation and Development (OECD), “There is no international trade association for the fashion clothing industry. Most luxury brand owners employ in-house anti-counterfeiting officers and are members of national pan-industry anti- counterfeiting associations.” However, efforts in recent years have been made to fight the growth of knock-off and copycat fashion. For example, The Anti-Counterfeiting Trade Agreement (ACTA) aims to “strengthen the international legal framework for effectively combating global proliferation of commercial-scale counterfeiting and piracy,” according to the Office of the United States Trade Representative. Therefore, the creation of one, unified body would allow for (1) control over the fashion industry, (2) the generation of more agreements such as the ACTA and (3) for legal and financial penalties to be placed on offenders. This association would be formed of key players in the industry—such as, designers, global trade officers and lawyers trained in fashion law. Overall, an International Trade Association would allow global trade in the fashion industry to be closely monitored.
However, with this plan of action, there also come disadvantages and counter-arguments.
With the notion that the fashion industry should establish an International Trade Association, it is important to understand the practicality of this plan and how it would unfold. The main disadvantage to the creation of one global, governing body would be the limitations it would bear on the creativity of the fashion world. For example, some designs look almost identical, not because one brand copied the other, but because the silhouette is a current trend in the fashion cycle. Therefore, the International Trade Association would need to be careful when distinguishing between the latest trend and a designer’s original creation. Additionally, the Organisation for Economic Co-operation and Development (OECD) presents two valid counter-arguments. First, the OECD claims that “counterfeits actually contribute to the marketing of the brand without causing any significant loss in profits.” More specifically, this insinuates that someone carrying an authentic Louis Vuitton bag and someone carrying a knock-off Louis Vuitton bag generate the same amount of buzz for that brand. Therefore, a counterfeit item does not seem so negative in this context. Secondly, “some consumers buying fake luxury items do so knowingly and would not be prepared to pay the price of the genuine item,” as stated by the OECD. Therefore, these customers actively seek out a faux-designer item to achieve a certain status, without the hefty price tag. Despite these disadvantages and counter-arguments, the creation of a regulatory body remains a viable plan. Coupled with copyrights, patents, trademarks and regulations (such as the ACTA), the creation of an International Trade Association is needed to actually monitor these current regulations, as well as implement more detailed protocols.
Because there is a serious need to regulate knock-off copycat items in the fashion industry, this need can be fulfilled through the creation of an International Trade Association. Counterfeit fashion degrades the authenticity of many fashion designers and their original creations. Additionally, it poses many economic threats—for the manufacturers, retailers and consumers. Although replication may seem like the biggest form of flattery, within the fashion industry, serious action needs to be taken for the future wellbeing of clothing.
“Anti-Counterfeiting Trade Agreement (ACTA).” Office of the United States Trade Representative, Office of the United States Trade Representative (USTR), Oct. 2011, ustr.gov/acta. Accessed 6 Apr. 2017.
“The Economic Impact of Counterfeiting.” Organisation for Economic Co-operation and Development, 1998, www.oecd.org/sti/ind/2090589.pdf. Accessed 6 Apr. 2017.
Jacobs, Alexandra. “Where Have I Seen You Before?” The New York Times, The New York Times Company, 27 Mar. 2012, www.nytimes.com/2012/03/29/fashion/at-zara-in-midtown-its-all-a-tribute.html?_r=0. Accessed 6 Apr. 2017.
Lieber, Chavie. “Why the $600 Billion Counterfeit Industry Is Still Horrible for Fashion.” Racked, Vox Media, Inc., 1 Dec. 2014, www.racked.com/2014/12/1/7566859/counterfeit-fashion-goods-products-museum-exhibit. Accessed 6 Apr. 2017.
Marte, Marianys. “Fordham Becomes First Law School Accredited For Fashion.” The Fordham Observer, Fordham University, 26 Aug. 2015, www.fordhamobserver.com/fordham-becomes-first-law-school-accredited-for-fashion/. Accessed 6 Apr. 2017.
McCall, Tyler. “Copyright, Trademark, Patent: Your Go-To Primer For Fashion Intellectual Property Law.” Fashionista, Breaking Media, Inc., 16 Dec. 2016, fashionista.com/2016/12/fashion-law-patent-copyright-trademark. Accessed 6 Apr. 2017.
“MSL in Fashion Law.” Fordham University School of Law, Fordham University, www.fordham.edu/info/23328/msl_in_fashion_law. Accessed 6 Apr. 2017.