Design patents are a poor match for high fashion
As the lengthy Hollywood awards season has shown us, fashion – especially red carpet fashion – is rife with faux pas, but none so great as “stealing the look.” It is considered terrible form to shop for your own paparazzi-ready gown in the pages of In Style magazine’s party circuit coverage, and worse form to look better than the original wearer. It doesn’t stop most rising starlets — especially the ones interested in making a name for themselves in a “who wore it better?” piece — but it never quite improves anyone’s situation.
Fashion itself is no different. Designers strive to inject fantasy and innovation into their fall ready-to-wear and couture lines, featured weeks ago in New York, last week in London and this week in Paris. The major fashion houses set the stage for style in the seasons to come. And then, consumers interested in being wallet-friendly fashionistas have created an ever-expanding market of “knockoff” fashion, allowing them to duplicate runway looks for a fraction of the price, shopping in their local mall instead of on Fifth Avenue. In an economy as unpredictable as ours, the market for consumer-driven fashion from stores like Forever 21, Zara, H&M, TopShop and ASOS seems nowhere near fading. (Although Forever 21 has faced a bevy of lawsuits, accused of copying the work of Anna Sui, 3.1 Phillip Lim and others.)
So how do designers, who work all year long in their chosen artistic field, protect the designs they create and preserve their own luxury? At least one group of designers has suggested expanding the scope of design patents — those patens given out to protect a product’s new and novel utility — into the realm of fashion, with the intent to protect their spin on age-old products, ready-to-wear and accessories, as a tech company would a new cell phone design.
The idea is, at least on its face, complex. Fashion rarely makes a leap forward in technology. Although there are firms working to make clothes more responsive to the human body, and even working to provide a healing and developing aspect to what you wear, most designers are merely building off basic constructions available to them since humans began crafting the first rudimentary clothing from fig leaves and animal skins (of course, fashion designs with a novel utility would already be eligible for utility patents, rather than design patents).
While a few designers have managed to invent a new clothing option – Diane von Furstenberg’s wrap dress comes to mind, celebrating it’s 40th anniversary at this year’s fashion week – those designers have often seen their work copied not by discount fashion retailers but by other high-end designers. Just last week, Roberto Cavalli had a small meltdown over Michael Kors’s Fall 2014 collection, accusing the Project Runway mentor and his million-dollar commercial fashion operation of “stealing” the works of other brands, including Cavalli’s, Celine, Hermes, Louis Vuitton and Tory Burch.
And designers who would most need to protect their work — upcoming and independent labels whose clothes are knocked off most often by consumer-driven fashion entities — would hardly be able to afford the time and fortune that initial paperwork and follow-up litigation would cost; no designer can afford to wait months for a single design to pass through a government initiation process, when runway shows are a bi-annual staple.
There are, of course, already means at a designer’s disposal, namely copyright protections, that can afford some measure of control over who gets to sell a knockoff of your design. While design patents have been and would be notoriously difficult to prove, copyrights – which protects an artist’s control over their work in print – have been litigated successfully, including against discount fashion retailers. Forever 21, often the victor in suits leveled by top brands seeking to prevent the store from selling “designer inspired” garments (such a regular occurrence they’ve noted that it’s part of their business strategy and a budgeted expense), was easily on the losing end of a lawsuit involving a perfectly copied fabric pattern, swiped from indie fashion house Feral Childe.
Copyright also has more lenient boundaries than the existing patent structure. As the world of digital media expands, so has the world of copyright, as musicians, writers and photographers look to harness the power of its protection on the Internet. Visual works, like Feral Childe’s textile designs, logos like Louis Vuitton’s eponymous “LV” and Burberry’s iconic tartan have all earned copyright protection alongside their luxury status, a protection that has served to preserve their status as luxury brands. Considering fashion designs “visual works” for the purpose of copyright protection could do the same for up-and-coming labels looking to make a unique mark on the field, while also preserving fashion’s process of marketing and innovation, even to discount markets.
Slight changes, derivative products and unique takes inspired by iconic designs are still available to designers looking to build on fashion’s storied history. After all, the future of fashion would not look the same without modern touches to Givenchy’s little black dress, Dior’s cinched-waist feminine suit or Diane von Furstenberg’s wrap dress, even as those fashion houses look to the seasons ahead.
Some designers have, of course, headed off the trials of consumer-driven discount fashion by inking deals with large-scale retailers. Chanel’s Karl Lagerfeld, for example, has embarked on partnerships with discount fashion retailer H&M and retail powerhouse Macys. Missoni cemented a record-breaking partnership with Target with products that sold out across the globe, and ready-to-wear staples like Nanette Lepore and Vera Wang are now working with JCPenny and Kohl’s respectively. Market-friendly strategies that anticipate consumers’ needs and wants, while preserving the good name of the fashion house and building consumer demand for the same designers’ works at higher price points. By embracing the free market, some designers have bypassed the need for litigation altogether.
In short, the cumbersome, complicated and time-consuming nature of design patents makes them a poor match for the fashion industry. Between an existing litigation rubric that uses copyright law to preserve the most iconic aspects of fashion design and being as innovated in marketing as they are on the runway, designers can adapt to the future, meet consumer demand and build buzz for their brands without resorting to the very un-modern federal government.
