In furtherance of the old saying about imitation and flattery, one might argue that Ksenia Schnaider should be flattered that Zara looked to her brand for “inspiration.” In reality, however, that rarely turns out to be the case, particularly when fast fashion brands religiously poach designs from budding young labels, such as Ksenia Schnaider, which is the eponymous brainchild of Kiev-based fashion designer Ksenia Schnaider and her husband Anton Schnaider, a graphic designer.
Together the Schnaiders launched their label in 2011, and since then, have swiftly become “one of the country’s most successful designers,” according to Vogue. Given the difficulty for most emerging labels to break out into the international market, particularly in light of the influx of Eastern European brands (and Eastern European-inspired brands) coming to the table in recent years, Ksenia Schnaider is “a stellar example of how to appeal to an audience beyond Ukraine’s borders.”
With proven appeal from consumers (it was not all that long ago that Bella Hadid stepped out in the brands denim shorts-over-pants design, and street style photos were dominated by the brand’s “it” items) and big-name stockists, alike (Ksenia Schnaider is stocked by Moda Operandi, Selfridges, Joyce, Atelier NY, 10 Corso Como, etc.) comes an increasing chance that a brand will be the target of design piracy. This is why Ksenia Schnaider’s 2016 “Sample Not For Sale” print, which Ms. Schnaider showed on the runway for Spring/Summer 2017 and says is the brand’s “best-seller and most copied slogan,” is currently adorning $25 kids sweatshirts on Zara’s website.
The elephant in the room here? “Sample Not For Sale” is not new; brands have been placing tags inside their sample garments (i.e., runway looks, etc.) with that language for years, primarily for a utilitarian purpose. With that in mind, Ksenia Schnaider did not invent this language.
Having said that, it does appear that Ksenia Schnaider is one of the first – if not the first – to take that language off of the designer tag and emblazon shirts and denim jackets with it; a quick search for “Sample Not For Sale” almost exclusively reveals this brand’s garments. And the move makes sense given that Ms. Schnaider has cited “clothing itself, its utility, history and codes” as her inspiration.
As for whether that gives the brand rights in the slogan, it might. In the U.S., for instance, trademark rights are not limited to brand new names, logos or slogans, and trademark holders need not be the first to ever use a mark. Others were using the word "apple" before the tech giant, after all. The question here would be whether the average consumer associates the “Sample Not For Sale” language with the Ksenia Schnaider brand.
While that might be a tough fight to win, one place where Ksenia Schnaider could easily find legal footing: People using their brand name in connection with the proliferation of knockoff “Sample Not For Sale” wares, which have taken off on Chinese e-commerce sites, as well, as the name is legally protected by trademark law.
“I have to say that Zara isn’t the first to try and copy the design of this print,” Ms. Schnaider told the Calvert Journal. “We know that counterfeit T-shirts with the same slogan are also being sold in China. It’s especially unpleasant when people use our hashtag with posts of themselves wearing these fake t-shirts.”