“Fast fashion” is a euphemism for “knockoff”

October 5, 2012

infringe more pay lessWhen I was in law school, we had a “Night of Fashion” event. Macy’s would come in and arrange a runway show for students with the idea that we’d learn how to dress in a professional setting.

The first show I went to featured a $3,000 midnight blue Versace suit that I sometimes still dream about at night. I’m quite sure nothing could ever go wrong on a day when I was wearing a suit that sharp.

But let’s put it this way — at this point in my life, a $3,000 suit would not be a practical or wise use of my funds. But what if, say, H&M made a version of that suit?

“Fast fashion” is a term applied to companies that take “inspiration” from runway looks and then create affordable versions that everyday people can buy. Besides H&M, other fast fashion companies include BCBG, Zara and Uniqlo.

So, when fast fashion companies imitate the look of a designer dress or an expensive sweater, are they infringing on any intellectual property rights held by the maker of the original item?

Maybe, maybe not. As is often the case in legal matters, the devil is in the details.

Recently, Target Corp. was sued by Minnetonka Moccasin, which claimed that a Target-brand shoe infringed on its trademarked “beaded Thunderbird” design. In its suit, Minnetonka Moccasin claimed that when it rebuffed Target’s attempt to sell genuine Minnetonka Moccasins in Target stores, Target just went ahead and made a knockoff version.

If Target had just made a moccasin, then Minnetonka Moccasin probably would not have much to complain about. Moccasins are too basic a concept to be protected; intellectual property tools aren’t meant to be used to discourage fair competition for consumers of a certain class of item.

But Target may have gone too far with the “beaded Thunderbird” design. It’s a trademarked logo, and it will be tough for Target to explain how and why a reasonable customer wouldn’t be confused as to whether he or she was buying real Minnetonka Moccasins.

Unless a company slaps a fake Derek Lam label or puts a faux Diane von Furstenberg logo on a garment, it can be difficult to argue that it stole the design of a particular piece of clothing or accessory. A fashion journalist might be able to spot suspicious similarities in the drape of a blouse or the stitching on the seams of a jacket, but would the public? Or a judge?

The application of intellectual property protections to areas like art and fashion, where lines seem less bright than they are in, say, the sciences, has always interested me. Art is by its very nature subjective and every work of art is in some way indebted to others; no artist lives in a vacuum, after all, and pure innovation and absolute creativity are considered by some to be myths.