Copying in the fashion industry

1. INNOVATION AND
INTELLECTUAL PROPERTY
IN FASHION DESIGN
*Kal Raustiala and Christopher Sprigman
Aziza Al-Mahrooqi

2. Fashion Industry Basics
‚Types of fashion‛ ..
* Haute couture
Created for a specific client. A couture garment is made to
order for an individual customer, and is usually made from
high-quality, expensive fabric, sewn with extreme attention to
detail and finish, often using time-consuming, hand-executed
techniques. Look and fit take priority over the cost of
materials and the time it takes to make.
* Ready-to-wear..
Ready-to-wear clothes are a cross between haute couture and
mass market. They are not made for individual customers, but
great care is taken in the choice and cut of the fabric. Clothes
are made in small quantities to guarantee exclusivity, so they
are rather expensive. Collections are usually presented by
fashion houses each season during a period known as Fashion
Week. This takes place on a city-wide basis and occurs twice a
year. The main seasons of Fashion Week include, spring/summer,
fall/winter.

3. Fashion Industry Basics
‚Types of fashion‛ ..
* Mass market..
Currently the fashion industry relies more on mass market
sales. The mass market caters for a wide range of customers,
producing ready-to-wear garments using trends set by the
famous names in fashion. They often wait around a season to
make sure a style is going to catch on before producing their
own versions of the original look. In order to save money and
time, they use cheaper fabrics and simpler production
techniques which can easily be done by machine. The end product
can therefore be sold much more cheaply.

4. Fashion Industry Basics
* ‚A designer categories of products‛ ..
“Better” fashion
(e.g., Anne Klein,
Banana Republic, Ann
Taylor)
More
fashion
content;
faster design
change
“High” fashion (e.g.,
Armani, D&G, Calvin
Klein)
Less fashion content;
slower design change
Least fashion content;
slowest design change
Basic and commodity
apparel (e.g.,
Old Navy, Wal-Mart,
Target)
price

5. Copying in The Fashion Industry
* ‚Style Piracy – A fashion problem‛ ..
Wholesalers and retailers were barred from the
populist shows unless clearly invited and had to follow
certain rules:
1- a set date of shows.
2- signed a ‘declaration of cooperation’.
* ‚International practice of design copying‛ ..
Such as most respectable ‚houses‛ over the world are
quick in the market with their copies (not all made from
a purchased original)

6. Copying in The Fashion Industry
* ‚A distinction between design copying and
trademark counterfeiting‛ ..
e.g., H&M dress using
Prada design
Design Piracy
e.g., counterfeit “Chanel”
sunglasses using Chanel
mark, but not design
Trademark
counterfeiting

7. Design Patent
* ‚Patent protection for novel fashion design is
available ‛ ..for
1- New, original, ornamental.
2- 14 years terms of protection.
* ‚The design patent provision fails to shelter
fashion design for two principal reasons..
1- doctrinal. Unlike copyright..
2- the process of preparing a patent application…

8. Examples of Fashion Design
Copying
•‚H & M and Zara‛
* we see widespread fashion design
copying, often by the same firms
offering similar clothing in both the
E.U. and U.S. markets. Indeed, two of
the major fashion copyists—H&M and
Zara—are European firms that
expanded to North America only
after substantial success at home.
which offers cheap facsimiles(copies)
of expensive ready-to-wear clothing
in over 1000 stores, including in the
United States. But copying is not
limited to large retailers(sellers)
aping elite designers.
(Michael Kors shoe)
(Morgan shoe)

12. Copying typically
occurs in the same
season or year that
the original garment
appears, but the arc
of the ‚driving shoe‛
illustrates that
fashion design copying
can sometimes occur
with a delay such as:
In 1978, the J.P. Tod
firm marketed a shoe
called the ‚Gommino‛
a leather moccasin
with a sole made of
rubber ‚pebbles.‛

13. The ‚Gommino‛ found a niche audience in the
early 1980s. That changed, however, in the mid
2000s, when dozens of shoe designers began
marketing their own versions. A few examples
of the derivative(quasi-copying) driving shoes.

14. Anti-piracy
•Networks against online file trading peer-topeer like ‚Grokster ‚ :
•(‚RIAA‛) the Recording Industry Association of
America
•(‚MPAA‛) Motion Picture Association of America
•(‚CFDA‛) the Council of Fashion Designers of
America, which has participated in the drafting
of a law ‛H.R. 5055‛ that would extend some
content protection to fashion designs.

15. A low-IP regime
‚We let others copy us. And when they do, we
drop it‛
- Miucci Prada* Such when trademarks only appear prominently on the
outside of clothing. More often, they are not visible unless
one looks inside an item of clothing. Where there is a visible
mark, it blunts some of the effects of copying on the
diffusion of innovative designs. And if the trademark is not
visible to others, rendering the original and the copy
strikingly similar.
* Many ‚copies‛ are reproductions but instead new garments
that appropriate design elements from the original and
recast them in a derivative work. And this regime is exactly
the conflicting of the default rule under the copyright laws,
which allocate to the originator the exclusive right to make
or authorize derivative works.

16. A low-IP regime
‚Should the fashion design protecting under IP
law??‛
* The absence of protection for creative designs and the
regime of free design appropriation speeds diffusion and
induces more rapid obsolescence of fashion designs.
* protects fashion designs from copying. Yet, we do not see
evidence, in either the form of lawsuits or the absence of
design copying, that the behaviour of fashion industry firms
changes much from one side of the Atlantic to the other.

17. A low-IP regime
‚Should the fashion design protecting under IP
law??‛
* Some laws (U.K) consider the protection via registered as
industrial designs -a category that includes apparel designsand to put in place design protection laws that follow
standards set out in the Directive. Those standards include
the following:.
• For protection to apply, a fashion design must be
registered.
• The owner of a registered design gains exclusive rights to
that design.
‚What about the protection for unregistered
• Protection extends to the ‚lines, contours, colours, shape,
designs??‛
texture and/or materials‛ of the registered design.
• A design registered is valid for a total of 25 years.

18. A low-IP regime
‚three plausible alternatives of fashion’s low-IP
regime?‛
1- that copyright law’s useful articles doctrine
prevents expansion of copyright to cover fashion
designs.
2- that the fashion industry is unable to organize
itself to pursue changes in the law.
3- that first-mover advantages in the industry
explain the industry’s relative tolerance of
copying.

19. Self-copying
* to prevent appropriation of their original
designs by other firms. If self-appropriation
through bridge lines were an optimal strategy
for a large number of fashion firms, many wellknown design houses have a second line that is
lower priced, such as Armani’s or Dolce &
Gabbana’s ‚D & G.‛, by using cheaper materials and
lower prices.

20. IP fashion design case
In 1994, Yves Saint
Laurent(‚YSL‛) famously
sued Ralph Lauren in a
French commercial court
for copying of an YSL
dress design. YSL’s
successful suit took place
in Europe, where IP laws
are more protective of
fashion designs. The YSLLauren lawsuit is in many
ways the exception that
proves the rule that
fashion designs are ‚free
as the air to common use.‛
defendant
v
plaintiff

21. conclusion
* Despite this lack of protection of fashion design, the
fashion industry continues to create new designs on a
regular basis.
The lack of copyright protection for fashion designs has
not deterred investment in the industry. Nor has it
reduced innovation in designs.
* The protection for fashion designs not destroyed the
incentive to innovate in apparel, it may have actually
promoted it. This claim—that piracy is beneficial for
fashion designers.
* But copies that destroy the incentive to innovate and
deter the
investment that innovation demands, but in some times
copying helps create and accelerate trends.