Hear Me Out

Copyright laws: the real reason companies can easily knockoff products

Because it’s impossible to trademark and patent everything.

words by: Natasha Marsh
Mar 27, 2021

I always hated group projects in school. More times then not, I’d get stuck with a classmate who was content to put their name on the project and receive a high mark, without doing any of the heavy work (research, composing or presenting). It always bothered me that someone got credit for my ideas and my hard work. This is exactly what happens in the fashion industry daily. Typically, smaller brands will create a genius product or graphic and do well with their following, only to see an extremely similar design on a large-scale brand who frustratingly profits a lot more. The knockoff items, products that are copied, are shockingly legal if the original wasn’t trademarked.

 

Unfortunately, the fashion industry has minimal legal protection when it comes to designs. U.S. copyright laws lists fashion as a manufacture industry rather than a creative one. In fact, fast fashion companies revolve around copying trends and brining them to the market quicker. H&M, Zara, and Forever 21 are some of the top retailers who copy and mimic luxury and small independent designers. The 1,976 outdated laws in place allow brands to copy one another without permission. The only way they can protect their work is by patenting fabrics and trademarking brand names, logos and slogans; or by paying for a trade dress. A trade dress is a trademark that deems a design recognizable to the average consumer. This process is usually lengthy and expensive and done exclusively through the United States Patent and Trademark Office. Meaning, everything else is up for grabs.

 

When brands challenge knockoffs, they often spend months in court in drawn out battles or pursue the copycat in a pending case. So why haven’t the laws been updated to protect fashion brands? Well in 2012, the Council of Fashion Designers of America tried to pass the Innovative Design Protection Act to provide designers with a three-year protection of designs but the bill was never brought to a vote.

 

Conventional wisdom says copying creates innovation and is the highest form of flattery. In Kal Raustiala and Christopher Sprigman’s book, The Knockoff Economy: How Imitation Sparks Innovation, they argue that if copyright protection would occur, large fashion brands would go crazy with patenting every single piece of clothing they sold and filing lawsuits left and right — creating an environment of hostility that could force independent designers out entirely. They fear that stricter laws would create high barriers of entry and turn the fashion industry into what we see in the tech industry — domination by a select few brands.

 

Others fashion insiders want consumers to know that knockoffs are bad for the industry. Fear of God’s creator Jerry Lorenzo, thinks knockoffs condition shoppers to undervalue the creative process. “It took us a lot of time and work to nail those proportions and details, and they’re stealing our designs and passing them off as their own,” he said to GQ. “No one knows that their track pants aren’t Fear of God, and so when they see it they might think, ‘That’s a $900 track pant?’ because their quality sucks, and that’s damaging to what we’re doing.”

 

It’s safe to say brands will never stop coping brands, especially with social media. As soon as something is online, anyone can get a hold of it. Leading to lots of copies, with the original designer getting lost in the madness. Brands are scouting social media daily for inspiration and often times stealing ideas. The only way to get ahead of it, is trademark and patent everything you legally can.

 

Photo via Christina Animashaun/Vox