Post Authored By: Sara D. Murillo

Fashion week is one of the most important events in the world of fashion. Creative design teams work endless hours to prepare for a single 20-minute fashion show. Fashion week serves as a platform for brands to showcase their creations, which can either make or break a brand’s reputation. The fashion community applauded Gucci® for showcasing the “Princetown Fur-Lined Loafer” during Milan Fashion Week 2015. This fashion show was not only a pivotal moment for Gucci®, but it also marked the beginning of an intellectual property law lesson.

Fur-lined loafers became a new trend and fast-fashion companies took note of that. Fast-fashion companies copied Gucci’s® trend-setting fashion design and began making lower-priced versions of the loafer. Although it was obvious that companies were copying Gucci’s® design, their products were not counterfeit goods: they were legal knockoffs. The issue at hand is, how could fast-fashion companies make, sell, and profit from someone else’s fashion design?

The term counterfeit is not synonymous with the term knockoff. Counterfeit goods typically cause confusion by containing identifying symbols of the brand that made the original good. A knockoff good simply resembles the original item and typically do not infringe upon another’s rights.

If a fashion design is not a protected intellectual property, companies are free to copy the design to create a knockoff good. There are four types of intellectual property rights: (1) patents, (2) trademarks, (3) copyrights, and (4) trade secrets. Fashion brands typically use design patents, trade dress (a subcategory of trademarks), or copyrights to protect their fashion designs, but each of these options comes with its limits. [1]

Design patents protects new ornamental designs of a functional item. [2] Design patents need to be filed within one year of first publication of the new design. However, an application should be filed before any publication to ensure foreign patent rights can be procured. Design patents are unfavorable in the fashion industry because designs are showcased at public events, such as fashion week. Furthermore, fashion designs have short life spans and may be out of style by the time the patent is issued. Even if Gucci® filed a design patent within one year of its Milan runway show, it would have been difficult for Gucci® to obtain a patent because the design may not have been considered new.

Trade dress protects customers by identifying the source of the product. [3] Trade dress may not apply to a brand’s new fashion launch because they are constantly creating new items with different looks. For trade dress rights to apply, a brand needs to use a look to identify itself as the source of the goods, which is difficult to do when fashion constantly changes. The Coca-Cola bottle is a classic example of trade dress because its shape is distinct and instantly identifies the product. Unlike the Coca-Cola bottle, it would be difficult for Gucci® to claim trade dress protection for its fur-lined loafer.

Fashion houses typically use copyright protection to prevent others from copying their creative fashion designs. Copyrights protects original works of art that are fixed in a tangible medium from being copied. [4] Copyrights do not protect the idea itself, nor do they protect functional portions of any creative work. However, if the shape of the creative work is not a functional aspect, it may be copyrightable. The shape of Gucci’s® fur-lined loafer does not appear to have nonfunctional aspects that could be protected by copyright.

Although fast-fashion companies are typically guilty of copying designs, luxury fashion brands also copy each other. Yves Saint Laurent® is a luxury brand that currently sells two handbags, “Manhattan Leather Satchel” and “Sac De Jour,” which closely resemble Hermes’® Kelley and Birkin® Handbag, respectively. Hermes® handbags are highly sought after. According to TIME magazine, these leather goods may be more valuable than gold. [5] Hermes® could stop Yves Saint Laurent® from selling its leather handbags that mimic its handbags if it is using its Birkin® or Kelley bags as a source identifier or if it filed a design patent on the look within one year of disclosing the look to the public in the U.S. Although intellectual property law is not perfect, it allows brand designers to protect what makes them special in the marketplace.

About the Author:

Sara D. Murillo is a 2L at Chicago-Kent College of Law. She is an Associate Editor of the Chicago-Kent Journal of Intellectual Property. Prior to law school, Sara graduated with a M.S. in Biotechnology from Rush University and a B.A. in Neuroscience from Lake Forest College. Sara is currently taking intellectual property courses. Additionally, Sara is currently working as an intellectual property specialist at a law firm.