image: Lisa Marie Fernandez
Celebrity fashion lines are often rife with potential issues, not least of which is a lack of original design, which is oftentimes followed by media-saturating claims of copying. Well, model-turned-actress Emily Ratajkowski’s new Inamorata swimwear line is no exception, according to designer Lisa Marie Fernandez. On the heels of the debut of her collection just 10 days ago, Fernandez has called out Ratajkowski for copying not one, but two of the six designs in her debut collection.
According to BoF, Fernandez swiftly sent Ratajkowski a cease and desist letter – a formal communication (and often, the precursor to a lawsuit) that alerts a party of its infringing behavior – over two allegedly copied designs. “Because of technology, we are really entering an era of accountability in so many ways,” Fernandez told BoF. She discovered the similarities between her off-the-shoulder Leandra bikini ($595) and multi-bow Triple Poppy maillot ($455 to $535) and Inamorata’s Vulcan top ($80) and Cardiff suit ($160), respectively, through Instagram.
Fernandez’s swimsuits (left) & Ratajkowski’s (right)
New York-based Fernandez’s copying claims and threat of impending litigation should Ratajkowski not cede to the demands included in Fernandez’s letter (likely that she immediately and permanently cease sales of the allegedly infringing swimsuits and potentially pay a monetary sum), center on two European Union (“EU”) Community Design Registrations. Such registrations provide protection in all EU member states for “the appearance of a product: its shape, patterns and colors.”
The design elements at issue here: The rouched, off-the-shoulder sleeve of Fernandez’s Leandra bikini, and the repeating tie-front details central to the Triple Poppy maillot one-piece suit.
Before we get ahead of ourselves here and assume that this would an open-and-shut, easy win for Fernandez should she file suit (and as of Monday, she has not, despite reports to the contrary), there is something important to consider. What none of the existing reports on this battle have addressed thus far is how Fernandez was able to prove that her swimsuit designs –which appear to be based, at least loosely, on a handful of already-existing and probably even vintage elements, such as rouched sleeves and front-tying bows – were original enough to warrant protection in the EU in the first place.
Chances are, if Ratajkowski opts to lawyer-up and fight back against Fernandez’s claims, this will be a central defense. Ratajkowski did, after all, say that she was inspired by “vintage” elements for the collection. This suggests that Fernandez may have done so, as well.
Finally, it is worth noting that even if a party does possess EU Design Registrations, that does not ensure a definite win. Such registrations may be invalidated after the fact (not entirely unlike trademark or patent registrations, for example) due to a “lack of novelty or individual character to be successful.”
If Fernandez does decide to initiate a lawsuit (in the EU, as distinct from the U.S., where she does not maintain legal protections, due in part to the difficulty of achieving copyright protection for useful things, such as garments and accessories), it would be the latest in a string of swimsuit-related litigation. Swimwear brand Kiini filed and then ultimately settled something of a rare copyright infringement lawsuit against Victoria’s Secret for allegedly copying its popular women bikinis. Similarly, Triangl was on a bit of a trade dress litigation tear last year after its wildly popular color-blocked bikinis were copied en mass by every retailer from Victoria’s Secret to Target.
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