A budding Danish brand is in the midst of a legal battle with the global fast fashion behemoth that is Inditex. At the center of the fight? A raincoat. Rains, the Aarhus-based outerwear company founded in 2012 by Philip Lotko and Daniel Brix Hesselager, filed suit against Zara’s parent company in April 2017, alleging that Zara had “slavishly copied” two of the brand’s signature – and most widely recognized – raincoat designs, thereby, giving rise to infringement claims under Danish law.
Rains asserted in its complaint that it became aware that beginning in 2015 until at least as recently as the spring of 2017, “Zara has sold and continues to sell and market jackets” that infringe Rains’ popular $125 “Long Jacket” and $135 “Parka” styles for a fraction of the price. Despite attempting to settle the matter amongst themselves, Rains claimed that Inditex refused to meet with its counsel, leaving the brand no choice but to initiate this case in order to bring “these violations to an end.”
Citing protections that are similar to U.S. trade dress, which prohibits the copying of the appearance of a product, assuming it has reached the necessary level of “secondary meaning” (i.e., that consumers can link the appearance of the product with the source), Rains alleged that its coats have “acquired distinctive character through marketing.” Therefore, the coats “enjoy protection against product imitations” in accordance with section 1 of the Marketing Practices Act and Danish case law.
In terms of establishing secondary meaning, Rains points to the fact that both its “Long Jacket and Parka Coat have been marketed intensively in a variety of contexts since 2012,” including “through a number of international channels and social media, such as Instagram.” Rains also notes that it maintains a list of 4,600 retailers that sell its coats in 20 different countries across the globe. As a result, the brand and its wares have “gained massive media awareness in 2012.”Rains’ Long Coat (right) & Zara’s copy (left)
Now, over a year after the case was initially filed, trial is underway, and Rains has some striking evidence in its favor. According to newly-filed declarations from Jiang Hiajun and Wu Xinqiang, the owners of two garment factories in China, they were each approached in the spring of 2015 by an agent for Zara, requesting that they manufacture raincoats. According to both declarations, Mr. Jiang and Wu both assert that they were both presented with “a copy of a Rains jacket, and requested that [they] manufacture identical [products] in terms of look, feeling, and strength.”
“We do not believe that there can be any doubt regarding Zara’s intention in this case,” Rains co-founder Daniel Brix Hesselager told TFL. “They have produced identical products and have thus been profiting on our position and increasing sales.” Nicolai Lindgreen of Copenhagen-based firm Kromann Reumert has said that Inditex has no comment on the pending litigation.
Rains is seeking injunctive relief, which would permanently bar Zara from selling the allegedly infringing jackets, and monetary damages in an amount that will be based, in part, on the volume of Zara’s sales of the coats in question. More than that, though, the brand – whose founders say that they have “invested in many resources to protect our intellectual rights … and the brand we have built” – is trying to send a message.
“We want to show that global giants cannot unimpededly steal designs and violate rights as a part of their business model,” says Hesselager. “We are aware that many professionals in and outside of the fashion industry are awaiting the result of this lawsuit to potentially follow in our footsteps. We aim to be a leading example and to motivate more companies to take up the fight.”
* The case is Rains ApS v. Industria de Diseño, S.A.; Fashion Retail, S.A., and Zara Danmark A/S, V-30-17