Fashion: Intellectual Property, Good Business, and Human Rights

June 5, 2011

The month of May saw a number of interesting intersections between fashion and law.

Nathalie Atkinson at the National Post wrote an impassioned argument in favor of ‘designer duplication.‘ She had previously received a note from Chanel’s legal department: “A note of information and entreaty to fashion editors, advertisers, copywriters and other well-intentioned mis-users of our Chanel name. … Although our style is justly famous, a jacket is not ‘a Chanel jacket’ unless it is ours[.]” Atkinson was not against Chanel’s enforcement of its intellectual property, but, “Chanel can’t prevent anyone from designing similarly boxy tweed jackets trimmed in anything, anywhere.” Atkinson argued that styles should be copied. Such an argument leads us IP lawyers back to the same issue: the idea/expression dichotomy.

“I’ve been thinking about this IP issue a lot in the two years since I discovered that Diane von Furstenberg’s brand had copied, stitch for stitch, the design of a jacket by Canadian niche label Mercy (the former properly acknowledged this and provided undisclosed financial compensation for having done so).”

Von Furstenberg’s imitations would be far too up-scale to be properly classed as ‘knock-off’s or ‘counterfeits’, which are a common problem for major fashion houses. New York City councilwoman Margaret Chin recently proposed a $1,000 fine for people who buy counterfeits. The New York Post reported that Susan Scafidi, of Fordham’s Fashion Law Institute, suggested the law could have a real impact. “There are some consumers who will think twice,” Scafidi said.

Ray Fisman, professor of social enterprise and director of the Social Enterprise Program at the Columbia Business School, would argue that such an impact would be a bad thing for the fashion industry. Writing for Slate, he argued that knock-offs actually help the original designer’s business. According to Fisman, knock-offs can function as free advertising for the real products —” partly by signaling the brand’s popularity, but, less obviously, by creating what MIT marketing professor Renee Richardson Gosline has described as a “gateway” product.”

The purpose of any design protection act should be to protect this industry, in balance with other legitimate interests, not hinder it. LA Downtown News reports that the California Fashion Association recently spoke against the Innovative Design Protection and Piracy Prevention Act in DC. The article points out that the law would favor the well-established fashion houses, which are mainly based in New York. Therefore, the Act supposedly pits the West coast against the East.

Under the current laws, trade names and marks of fashion houses receive more clear protection than designs and styles. But there are limits to protection. Defenses to claims of trademark infringement, such as parody and referential use, are significant limitations. Human rights, primarily freedom of expression, can also pose limitations. On May 4, 2011, the Hague threw out a claim by Louis Vuitton that “Darfurnica”, a painting of an African child holding a Vuitton bag, violated its intellectual property rights. The Financial Times reports that the artist wanted to draw attention to the crisis in Darfur and Western indifference to it. The court ruled that the artist’s freedom of expression outweighed the importance of Vuitton’s protection of property.

The right balance regarding legal protection of fashion has yet to be found. Meanwhile, Forever21 is suing a fashion blogger at WTForever21.com. See “Today in Irony” …