When Fashion Moves too Fast: Impact on IP Protection of the Fashion Industry

As we look in history, humans have used various materials to cover their bodies. As lifestyles began to evolve and the understanding of the world deepened over time, clothing gradually transformed from a mere necessity to an essential form of self-expression. Fashion came into the picture due to this need for self-expression. It is often understood as a form of clothing, footwear, jewellery, and accessories, varying across various cultures, which reflect different styles of self-identity, status, and sexuality.

As a result of this desire for self-expression, fashion has become a serious business. Estimated to be around $1.7 trillion[1], fashion is a ‘fast’ growing industry. It is continuously evolving due to the shifting public tastes. Right from Y2K trends to 90s minimalist fashion, we observe that fashion isn’t ever constant.

Fashion brands contribute a lot to the changing trends in the fashion industry with their creative designs. Fashion implies the presence of creativity[2]. This creativity is rewarded via protection under IP laws, mainly under design rights, copyrights, and trademark protection. Yet, due to the limited scope of IP laws, many brands are often vulnerable to “stealing” by others, i.e., fast fashion.

UNDERSTANDING FAST FASHION

Fast fashion is basically fashion produced in a ‘fast’ manner in a number of senses[3]: from introducing several designs in a span of days to getting it mass-produced to marketing and distributing it at an incredibly fast rate. Unlike traditional fashion houses that take months to launch their signature pieces, fast fashion giants like Zara, H&M, and Temu release new collections in weeks – sometimes in days. Often powered by the need to bring in new designs at ‘ultrafast speed’, these brands are always churning out new lines of products. Such brands use low-quality material to replicate runway collections or trending designs, which helps them to capitalize on the changing trends.

Their modus operandi is essentially the same – look out for new and in-trend designs created by other brands and produce them quickly with minimal costs[4]. Brands like Shein are known to outsource designs to identify trendy patterns to imitate or draw inspiration from, with low-cost manufacturing methods and technology⁴. Drawing inspiration from others is common and encouraged in every field. Inspiration is the process of being motivated and influenced to create or innovate[5] and creators tend to look out of their space to seek ideas from already existing products. Fast fashion thrives on such inspiration from designs that have been in the market for long or designs that are trendy.

However, often fast fashion retailers escape liabilities in the name of ‘inspiration’ and end up ripping off the creations of fashion designers. Journalist Lucy Siegle’s quote “Fast Fashion isn’t free. Someone, somewhere is paying.[6]” holds true for many small and indie designers who have their designs copied by fast fashion retailers. American designer Cassey Ho has repeatedly accused Shein of creating ‘dupes’ of her designs, namely the viral Pirouette Skort, Corset Bra, Twirl Dress, Tie-Breaker Superdress, Bungee Sklegging, and Superskorts[7]. Such piracy inflicts emotional and financial harm on original designers, who have spent hours to create their works.

DOES THIS “INSPIRATION” BREAK THE LAW, or IS IT RESPECTED UNDER THE LAW?

Inspiration is legal and widely accepted. Designers draw inspiration from art, culture, history, music, books or even other fashion works. However, there is a fine line between inspiration and posing a copy as an inspired work. An inspired work must have distinctive features, ones that are enough for the general public to distinguish it from the original source, making both the source and the result eligible to receive protection under IP Law.

When a fashion designer copies a substantial or distinctive element of the work of others, making it blatantly obvious or enough to confuse the public about the origin of such work, it amounts to fashion plagiarism. This can infringe the IP rights of the original designer.

Fashion plagiarism can be simply understood as mindless copying of the work of another. It is an unauthorised method used to copy another fashion designer’s works. This is seen in various ways, such as replicating unique silhouettes, cuts, prints, or tweaking a famous brand’s design. In the fashion world, terms like “knock-off” and “counterfeit” are used widely. Though these words are synonymous, there are slight differences.

Knock-offs are duplications of works by another without permission; the intention behind them is to sell the copy of one in the name of another. Imagine an indie brand, Rexa, which launches its signature creation of a maroon trench coat made from organic material and featuring embroidered silver moon motifs along the coat. It garners popularity due to endorsements by fashion influencers, and the coat ultimately becomes the brand’s identity. Now, within weeks, a fast fashion brand replicates the coat but instead offers different colours and prints the silver motifs. It sells if without crediting Rexa and garners the same popularity and sales as Rexa, if not more. What’s happened here is that the brand has replicated Rexa’s original creation without giving acknowledgement or consideration.

Meanwhile, counterfeits are mimicry sold in the name of the original fashion brand. Brands indulging in such practices copy well-known designers and brands with the intention to mislead the purchasers about the product’s quality and origin[8]. Brands copy from the design to the logo attached to it. These fake products often violate IP laws, especially under Copyright, Design and Trademark Laws.

HOW DOES IP LAW COUNTER ATTACK FAST FASHION BRANDS?

IP Laws are the strongest weapon for the aggrieved fashion brands to fight unauthorized copying by fast fashion giants. In India, the IP framework provides multiple methods to protect the works of fashion designers –

• through the Designs Act, 2000; for textures, materials, shapes, detailing in garments, etc.
• through the Copyright Act, 1957; for artistic works such as sketches and textile prints; and
• through the Trademarks Act, 1999; for brand identity, trade dress, logos and labels.

But it only protects certain features of fashion products and not the end product itself.

Original works such as illustrations, prints, and fabric designs can be protected under the Copyright Act, 1957. Indie brands or designers can use copyright laws to sue fast fashion retailers for copying their works on other fabrics. Even so, the nature of copyright law brings restriction. A saree with unique printed florals can be protected under Section 13 of the Act. Nonetheless, only the “original element” in the saree is protected, i.e., the ‘printed florals’ and not the saree as a whole. The Act further only protects two-dimensional patterns on the fabrics and clothing, restricting the already limited protection available for designers.

Moreover, Section 15 constrains the copyright protection, wherein if the artistic work is applied to an article for more than 50 times through an industrial process, the copyright protection ceases to exist[9]. It further cannot be protected under the Designs Act, 2000, as it has been disclosed to the public[10].

The Designs Act provides the strongest protection against fast fashion retailers, as it allows fashion brands to register their designs. It protects the aesthetic appearance of the product, i.e., the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any ‘article’[11]. The protection also extends to three-dimensional aspects of the article. For e.g., unique garment cuts such as asymmetrical 3D hemlines on dresses can be protected under the Designs Act.

Designs registered can be protected for up to 15 years in total, i.e., from the date of registration. This prevents exact replicas or dupes that have substantial similarity with the registered design from being produced by fast fashion retailers. Nevertheless, the registration process makes it hard for indie brands to avail design protection due to high registration costs and necessary requirements to be fulfilled, i.e., novelty, originality, not previously published, non-functionality, distinguishability, capability of being applied by an industrial process, visual appeal and the absence of scandalous or obscene elements¹⁰. Even more so if the designs have been debuted prior to being registered.

In addition to the artistic and aesthetic elements, fashion brands can protect their brand identity and commercial distinctiveness through trademark laws. This is the most common way to protect fashion brands. A registered trademark provides brands a boost in the market and makes them appeal to their potential customers as a trusted and ethical brand. Major brands have distinctive names and logos to differentiate themselves from other brands working in the same industry.

Registering a brand’s name and logo is beneficial for fashion brands to counterattack fast fashion retailers from infringing their work. When fast fashion produces lookalikes of a particular brand, they intend to use the uniqueness and identity of the brand. Customers begin to associate the dupes and knock-offs with the original brands, creating a “false association”. This weakens the trademark of the brands. Gradually, these knock-offs succeed in diluting a brand’s connection with the fashion apparel they trade in by “blurring” the association consumers attach with the apparel and the fashion brand. It also “tarnishes” the reputation of the brand associated with the trademark, as fast fashion brands operate on low quality and unsustainable materials, rapid-disposal consumerism and exploitative labour practices to provide apparel at a quicker pace and cheaper rate. When such retailers use the trademark, logo or trade dress of reputed fashion brands, it is often fatal to their image. The brand exclusivity built by the fashion brand is lost in this process. The protection granted under the Trade Marks Act, 1999, makes it possible for brands to protect themselves from trademark dilution.

Furthermore, fashion brands can protect their designs via trade dress – i.e., the overall visual look of a product or its packaging. It gives the customer an idea of its origin, such as shapes, colours, patterns, etc. Particular patterns or colours may enable the brand to protect their creations, but not every pattern can be considered distinct. While customers associate the red-soled shoe with Christian Louboutin, a French court ruled that the imitation by Zara did not infringe the brand’s IP rights[12].

THE WAY FORWARD

IP laws remain the strongest source to protect the expressions of fashion designers and indie brands. Concurrent to the growth of the fashion industry, the IPR regime is rapidly adapting to efficiently protect the fashion industry. But the current regime is still weak to protect the vast entirety of the fashion industry. With that said, brands alone can take steps to protect themselves.

Awareness is key in protecting a fashion brand. Given the range of IP protection available, designers need to strategically choose the type of protection that best suits their designs. Brands may delay public release until the necessary registrations and filings are completed. Additionally, brands can record their registered IP rights with the Custom Authorities to prevent any counterfeit or infringing goods from entering the border.

Given the rise of online platforms like Amazon, Flipkart, etc., brands have an easy way out by using platform-specific takedown tools to remove counterfeit products. If fast fashion brands do end up releasing their knock-offs and dupes for sale, fashion brands can avail themselves of remedies ranging from cease & desist notices to civil suits for injunctions or damages if the infringement is egregious.

The most effective method is using social media to call out fast fashion brands for indulging in such unethical practices. Posts made on SNS platforms such as TikTok, X and Instagram often go viral, compelling infringing brands to respond due to public pressure. More often, such brands do take down infringing products, or it leads to consumer boycotts against them.

Ultimately, fashion is not just business – it’s a form of creative expression involving hard work and is a livelihood for many. Protecting such businesses is a must, as it encourages fair competition and also ensures that creativity, innovation and self-expression aren’t harmed and are duly rewarded.

Author:– Nisha Purushan, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

REFERENCES

1. McKinsey & Co., What Is Fast Fashion?, McKinsey & Company, https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-fast-fashion
2. Ayman Naveed, “Application of IPR to the Indian Fashion Industry and Its Flaws: A Legal Study”, 3 AIJACLA, 129 (2023), https://www.aequivic.in/pst/application-of-ipr-to-the-fashion-industry-and-its-flaws-a-legal-study
3. Alex Crumbie, What Is Fast Fashion and Why Is It a Problem? ETHICAL CONSUMER, https://www.ethicalconsumer.org/fashion-clothing/what-fast-fashion-why-it-problem
4. Patlytics, Shein’s Shakeup: How the fast-fashion retailer exposes IP issues in the fashion industry, PATLYTICS, https://www.patlytics.ai/blog/sheins-shakeup-how-the-fast-fashion-retailer-exposes-ip-issues-in-the-fashion-industry
5. Isha Johnson & Sakshi Verma, Intersection of Inspiration and Infringement in the Fashion Industry, LAWCTOPUS, https://www.lawctopus.com/academike/copyright-infringement-in-fashion-industry
6. Audrey Stanton, What is Fast Fashion, Anyway?, The Good Trade, https://www.thegoodtrade.com/features/what-is-fast-fashion
7. Cassey Ho, SHEIN has fully gone shameless thief mode. Ugh., BLOGILATES, https://www.blogilates.com/blog/shein-stealing-popflex-designs/
8. Tanya Kumari & Dr. Harshita Singh, The Impact of Intellectual Property Rights in the Fashion Industry, IV (II), IJIRL, 1124
9. The Copyright Act, 1957, § 15.
10. The Designs Act, 2000, § 4.
11. The Designs Act, 2000, § 2 (d).
12. Christian Louboutin SAS v. Van Haren Schoenen BV, [2018] Bus LR 1411

[1] McKinsey & Co., What Is Fast Fashion?, (McKinsey & Company) <https://www.mckinsey.com/featured-insights/mckinsey-explainers/what-is-fast-fashion>

[2] Ayman Naveed, “Application of IPR to the Indian Fashion Industry and Its Flaws: A Legal Study”, (2023) 3 AIJACLA, <https://www.aequivic.in/post/application-of-ipr-to-the-fashion-industry-and-its-flaws-a-legal-study>

[3] Alex Crumbie, What Is Fast Fashion and Why Is It a Problem? (ETHICAL CONSUMER), <https://www.ethicalconsumer.org/fashion-clothing/what-fast-fashion-why-it-problem>

[4] Patlytics, Shein’s Shakeup: How the fast-fashion retailer exposes IP issues in the fashion industry, (PATLYTICS), <https://www.patlytics.ai/blog/sheins-shakeup-how-the-fast-fashion-retailer-exposes-ip-issues-in-the-fashion-industry>

[5] Isha Johnson & Sakshi Verma, Intersection of Inspiration and Infringement in the Fashion Industry, (LAWCTOPUS), <https://www.lawctopus.com/academike/copyright-infringement-in-fashion-industry>

[6] Audrey Stanton, What is Fast Fashion, Anyway?, The Good Trade, https://www.thegoodtrade.com/features/what-is-fast-fashion

[7] Cassey Ho, SHEIN has fully gone shameless thief mode. Ugh., BLOGILATES, https://www.blogilates.com/blog/shein-stealing-popflex-designs/

[8] Tanya Kumari & Dr. Harshita Singh, ‘The Impact of Intellectual Property Rights in the Fashion Industry’, (2024) IV (II), IJIRL, <https://ijirl.com/wp-content/uploads/2024/05/THE-IMPACT-OF-INTELLECTUAL-PROPERTY-RIGHTS-IN-THE-FASHION-INDUSTRY.pdf>

[9] The Copyright Act, 1957, s 15

[10] The Designs Act, 2000, s 4

[11] The Designs Act, 2000, s 2 (d)

[12] Christian Louboutin SAS v. Van Haren Schoenen BV, [2018] Bus LR 1411