An article that was posted this week in Fashionsta's "Adventures in Copyright" section (and subsequently picked up by a legal blog, to which I ask, Did you guys even read it?) was brought to my attention, and it warrants a bit of attention. The piece, entitled "Why Patent-Holding Designs Still Get Knocked Off: A Case Study With Alexander Wang," attempts to shed some light on why Alexander Wang's design patent protected accessories (namely, his Rocco bag, which contains design patent-protected studs and his Robyn bag) still manage to be copied by Forever 21 and Nasty Gal (Side note: I do wonder how Nasty Gal feels about advertising on a site that calls their design pirating ways into attention. Because right next to Fashionista's article, which specifically names Nasty Gal as a source of low-cost knock-offs, appears an ad for the "Holiday Mayhem" available on Nasty Gal's site). While a look at the frequency with which designs are copied is absolutely worthy of discussion, putting it into a legal context is not always fitting, and this article is unfortunately quite demonstrative of that.
For the sake of time and space, let me address just one sentence from Fashionista's article. This sentence comes to us from the penultimate paragraph. The author, Susie S. Yoo, writes: "As long as the consumer is not confused as to the source or maker of the item in question (this is the crux of intellectual property protection in the fashion world), a design can generally be tweaked and re-created." The problem here (among many) is that Yoo is using the legal standard of one area of intellectual property law (trademark) to explain the purpose of all areas of intellectual property law. In addition, she is missing the true problem in the fashion industry, which is NOT consumers confusing the source of goods (or more specifically, the brands, in this case). Someone buying a knock-off Alexander Wang bag at Nasty Gal does not think the bag he or she is buying is actually coming from Alexander Wang. Think about it. The problem is that Nasty Gal is essentially STEALING Alexander Wang's designs and not paying him for them. Nasty Gal is not obtaining a license to use Wang's design as any other manufacturer would do in any other industry. Nasty Gal is stealing. This is the problem.
This problem is uniquely American because in the U.S., fashion designs as a whole (the design of Wang's bag, included) fall precariously in the void between trademark and copyright, and are, for the most past, rather ill-suited for the protections afforded by design patents. Take copyrights: Wang's bag doesn't fall into any of the statutorily provided categories. The Copyright Act expressly sets out an exhaustive list of categories to which the protection of copyright law applies, and fashion designs (bags, shoes, garments. etc.) as a whole are not included in that list (although, as Yoo points out, some clever designers use copyrightable patterns on their garments and/or accessories, thereby creating grounds for copyright protection for the print itself). Moreover, copyright law does not protect the functional (or "utilitarian") aspects of works, further disqualifying garments and accessories, which are inherently functional (or "useful").
Take then trademarks; the purpose of trademarks (as we learned from Yoo) is to indicate the source of goods to consumers. Absent a trademarked pattern covering the bag (a la the Louis Vuitton Toile Monogram) or a shape that has garnered secondary meaning in the minds of consumers (think: the iconic Hermès Birkin bag, which is protected by trade dress), trademark law does not apply. Indeed, it is Wang's name itself and logo that qualify for run of the mill trademark protection, and neither of these appear on the Nasty Gal knock-offs (which is why they are called knock-offs and not infringements, or more specifically, counterfeits). Wang's bag does not indicate the source of the good to consumers, much the same way a song doesn't indicate the source of the good to consumers or the same way a sculpture doesn't indicate the source of the good to consumers. That is simply not the purpose of these works. Yet, each one of those creations is expressly afforded protection under copyright law, except for Wang's bag. So, when (and I'm reaching out of Yoo's single sentence above) Yoo asks: "Who can really claim exclusive ownership of a specific design? Isn’t fashion inherently referential?" -- the answer, Yoo, is: THE CREATOR. Under Yoo's logic, no song would be entitled to copyright protection, because, surely, music is also inherently referential.
Finally, and this is often cited as a retort to the argument that there is no IP protection for clothing designs, take design patents. While, for example, Wang's bag design may technically fit into the realm of design patents (non-functional, ornamental designs for manufacture), it is not an ideal form of protection by any means. This is because by the time a design patent is issued (usually within about two years and at a significant cost in comparison to its IP counterparts), Wang's collection will be several seasons old, effectively neutering the value of such protection.
The "crux" of the issue in the United States is that there is precisely no intellectual property protection that is particularly well-suited for fashion. It has absolutely nothing to do with confused consumers buying $50 Nasty Gal bags thinking they've bought an $800 Alexander Wang bag. And Alexander Wang isn't too worried about losing sales to Nasty Gal; he's worried because Nasty Gal is blatantly STEALING his work (bags, shoes, countless iterations of his dresses from S/S 2013), and he has no legal remedy.
The takeaway from this article: Do not believe what you read. Also, for god's sake, do not read the comments on Fashionista's article because those are really, really devoid of any legal reasoning.