How Should The Fashion Industry Deal With Thorny Plagiarism Disputes?

As an industry driven by creativity, fashion inevitably faces plagiarism.

With the development of science and technology and the acceleration of information circulation, the diffusion efficiency of creativity has been promoted rapidly, but the updating rate of relevant laws is lagging behind, which makes the cost of plagiarism greatly reduced.

This information asymmetry and speed difference in the gray area of the industry, quickly reproduce numerous commercial bodies that pursue short-term interests.

For example, the most important fast fashion category in the industry is a giant ship developed on the plagiarism zone. Its business model has been criticized morally.

In China, Taobao shop has blatantly copied luxury brands and designer brands for a long time, and has made huge profits. Until recently, Taobao has just been included in the "notorious market" by the United States.

In the process of duplication, the premium of brand and designer is constantly exploited, which ultimately consumes the source power of the industry.

However, a lot of plagiarism disputes make physical and mental fatigue for practitioners.

More importantly, due to the emergence of a series of concepts such as creative reference and cultural appropriation, the definition and standard of original creation are being differentiated. People of different circles and values try to maintain their subjective position, but it is difficult to improve the definition and protection of rights in operation, and can not establish effective dialogue mechanism in the industry.

The fashion industry has fallen into a fixed framework of discussion. For example, the framework of media reports has nothing new besides combing the incidents of plagiarism cases. Due to the lack of objective and neutral criteria for the original and plagiarism, the legal profession has a relatively complicated definition of dress appearance patents, so it is difficult for public opinion to discuss the matter thoroughly.

Recently, in the fashion circle, there has been a wave of controversy over the industry once again due to plagiarism. With the development of events, it may be that we are rethinking the root of this problem and seeking a critical moment for new perspectives and solutions.

01

According to The Fashion Law, US tidal brand Off-White recently launched a plagiarism lawsuit against the accessories brand Rastaclat, a $18 "Off-Clat c/oRastaclat" bracelet, which is being sold by brands and retailers including Amazon in the name of Off-Clat and / or Off-Clat C / oRastaclat.

The brand also opened a series of lawsuits against several retail brands selling fake goods.

This means that Off-White, often questioned by originality, has also begun to actively protect its intellectual property rights.

In the case, Off-White thinks that Rastaclat's products use its classic quotes and red zipper elements to try to confuse consumers and make them mistaken for buying Off-White products.

But despite Off-White's lawsuit, the brand actually did not apply for a patent trademark for the appeal element.

In this regard, Off-White believes that in the 6 year development history of the brand, these two design elements have accumulated trademark assets through a wide range of marketing activities and the resulting consumer reputation and public opinion effects.

Retailers, consumers and the public are already familiar with Off-White products and brand names, and they are specifically linked to Off-White.

Even for Off-White's already known brand iconic elements for intellectual property protection, safeguarding rights is also somewhat difficult.

In July 2018, Off-White applied the trademark of the red zipper to the USPTO of the United States Patent and Trademark Office, but was initially rejected by the agency in December. At present, the brand is still working on applying for the registration of "red zipper" for trademark, trousers, headwear and footwear.

According to the United States Patent and Trademark Office, the definition of red zipper trademark is full of potential problems.

Zipper lace itself is functional, while functional products can not be used as trademark protection.

However, the elements of Off-White's patent application are red zippers. The brand claims that red is part of the trademark, but people believe that this element in essence is not unique.

Unlike trademark law, patent law has no requirement for "uniqueness" and "novelty" of the product. Its definition is mainly whether there is "confusion possibility".

This means that Off-White must prove that the red zipper has been linked to the brand in the recognition of ordinary consumers, and provides evidence including advertising expenditure, sales data, and the exposure of the third party media.

It can be seen that it is difficult to protect the appearance of Off-White, even though it is for the protection of intellectual property rights, which is widely known as brand iconic elements.

In particular, a brand like Off-White, its founder, VirgilAbloh, is a representative figure in the fashion industry today. It is controversial about the definition of originality.

02

In April 27th, the supermodel Lv Yan, who had 5 million fans in Sina micro-blog, released a micro-blog, which stirred up thousands of waves.

Micro-blog announced the lawyer's letter alleging the plagiarism of the Shenzhen film fashion group, formally founded by its designer brand COMMEMOI.

COMME MOI was founded by supermodel Lv Yan in 2013, mainly for urban female consumers aged 25 to 35.

The lawyer's letter shows that many fashion brands including "Song of Song song", "YINER sound", "INSUN" and "OBBLIGATO Olivia" are highly similar to the designs of COMME MOI.

COMMEMOI asked the fashion group to step down immediately and destroy the related products, while apologizing to the director Lv Yan and the brand.

A month ago, Lv Yan accused the fashion group of copying by his personal media account. The fashion group released the first statement in March 29th, denying the plagiarism accusation, and said the accusation had a bad effect on its brand image.

It is worth noting that in the first statement, the fashion group was named by a "domestic brand designer" without specifying COMMEMOI.

The film fashion group stressed in the statement that, as a first generation and multi brand group of Chinese clothing industry, which has been established for 23 years, it is very respectful of intellectual property and R & D innovation of fashion enterprises. The current R & D team has reached 300. Lv Yan has no legal basis for the plagiarism, so it requires COMMEMOI to delete speech, otherwise the legal responsibility of the responsible person will be investigated through legal way.

However, the public opinion continued to ferment, micro-blog issued, Lv Yan's related micro-blog praise more than 2000, and got a number of industry people's forwarding voice.

In this regard, the Shenzhen film fashion group released second statements in micro-blog on April 30th, saying that Lv Yan and his company violated the reputation right of the movie fashion group and its brand clothing, and will be prosecuted for Lv Yan's legal duty to defame the group's commercial reputation, and pointed out that Lv Yan's banner of using legal means to safeguard rights is actually propaganda and eye catching.

Lv Yan again issued a micro-blog in micro-blog, emphasizing that she was framed and slandered.

Lv Yan told fashion headlines that she did not consider the legal way at the beginning. She has publicly stated on many occasions that after making her own business, she felt that clothing companies could be bigger and harder. It was normal for individual designers to make mistakes in the design team of hundreds of other people. She expected the other side to have the role of a big company.

But what surprised her was that the fashion group accused her of unfair competition. She immediately realized that "if I have no right to speak, I will ask for help, and who will protect and pay attention to the designer brand, and the industry environment will only get worse."

Subsequently, Lv Yan decided to hire an experienced lawyer team in the field of intellectual property rights, and the agency costs amounted to several hundred thousand.

She is ready to fail to win the case, "more importantly, let the whole industry and even the relevant departments concerned about this matter, and promote some substantive changes.

The film and television industry is fighting against piracy together. Why can't clothes be allowed? "

On the other side, the fashion group also insisted on its position. The group responded exclusively to the fashion headline. "Regarding Lv Yan's" plagiarism ", the legal profession has its own rules of identification, and who advocates the proof, Lv Yan must produce legal evidence to prove her claim, and the movie supports the use of legal means to resolve disputes between the two sides.

The group stressed that "the essence of the matter is not" plagiarism "itself, but rather a highly competitive act of unfair competition. It seeks to maximize its own interests by lowering its competitors' plagiarism.

From beginning to end, the film believes that China's clothing industry should be orderly competition. If it involves plagiarism or infringement of intellectual property rights, it can be solved by legal means. But with several so-called "similarity" elements, it will accusation against a Chinese dress industry women's clothing leading enterprise and advertise its own brand.

Obviously, there is a clear difference between Lv Yan and the movie fashion group in the definition of plagiarism. The former takes the design community's "consensus" as the definition standard, while the latter's ruler is the current law. The design elements of the two elements are only "similar" and not "plagiarism" in the legal concept, but the source of their material is not COMMEMOI, but the international trend.

In fact, merely tracing the source of design and identifying the original is a very complicated textual research process both in law and in the fashion industry.

Differences in standards create difficulties in dialogue.

The two sides also play an increasingly competitive role in the industry chain, which also exacerbates the tearing of communication.

The designer brand such as COMMEMOI is emerging as the emerging category of China's clothing market, and has begun to expand to commercialization and scale.

These brands often have style positioning and fashion views, and gradually consolidate the supply chain. They are more connected with the international fashion trend in design concepts, but they are still lagging behind in terms of capital level and brand management.

The fashion group in Shenzhen is based on the apparel manufacturing industry in the Pearl River Delta region, and has been holding the right to speak in the apparel industry for a long time by relying on mass production to support the large-scale garment business.

For these typical Chinese apparel enterprises, fashion awareness is an imported product that comes into being with the tide of globalization after the maturity of an enterprise.

In the mature process of the domestic market, the commercial brand of designer's brand and medium and high-end pricing is beginning to face a positive competition relationship. For both sides, goodwill is an important brand asset, which also makes the plagiarism incident more serious by both sides.

03

As far as the current domestic legal provisions are concerned, most legal professionals believe that applying for appearance patents for clothing is not the most economical and effective means of protection.

The duration of protection for design patents is 10 years, and the period of review is roughly 6 months.

The clothing industry is a typical fast growing industry. Even if the brand has applied for the design patent, the product is usually over the season.

Especially for young designer brands, they are weak in legal rights protection, lack of manpower, energy and financial resources for patent applications.

Liu Yafei lawyer said that the design patent was granted the examination and authorization, the cycle was relatively long, and once authorized, it should be paid annually.

According to the characteristics of the clothing industry, fashion design follows the trend of the times. The market cycle of the clothing pattern is shorter. Generally it is the time for the season to be put into the clothes. It takes 10 years to design clothes.

Therefore, the high cost long-lasting design patent is not suitable for the fashion design based on the quarterly trend.

In addition to the appearance patent, copyright is difficult to operate in judicial practice although there is no need for special application.

The work referred to in the copyright law refers to the intellectual achievements that are original and can be copied in a tangible form in the field of literature, art and science.

However, it is noteworthy that the scope of copyright does not include practical expression and functional parts.

For creative and functional fashion, how to distinguish its practicality and artistry, public domain expression and originality expression has become a difficult problem to determine whether the clothing can be protected by copyright.

Lawyer Liu Yafei suggested that the elements of ready-made clothes should be split and the rights should be maintained separately.

For example, clothing pattern decoration is protected by copyright, and cloth production is protected by patented products and methods. The saliency of clothing is protected by trademark law and anti unfair competition law.

The protection of clothing intellectual property rights is a global problem, but since last year, foreign countries have made some breakthroughs in this field.

In July 2018, Diesel's parent company OTB sued Zara's parent company Inditex group for copying its Diesel jeans and Marni sandals design case.

Although the Inditex group insists that there is a significant difference between its sandals design and Marni sandals, and Diesel jeans lack of originality, there is no infringement. Milan court judge ClaudioMarangoni still believes that Zara's behavior has constituted plagiarism and infringement, requiring the Inditex group to recall the infringements immediately and stop the sale, and to pay $235 for each product.

OTB group was accused of plagiarism against sandals and jeans designed by ZARA. ZARA was first sentenced to plagiarism.

The lawsuit began in 2015. According to the allegations brought by OTB group at that time, Zara's manufacturing and selling of counterfeit goods violated EU intellectual property law, of which the appearance of Skinzee-SP jeans was registered in the EU.

Some analysts pointed out that the verdict confirmed the possibility of compensation for infringement of registered and unregistered designs within the European Union. It is the first case in Europe. Although the ruling still has the possibility of being appealed, Dentons, a OTB's law firm, said in a statement that it "opened a new door for the enforcement of intellectual property rights within the European Union".

For luxury fashion brands, the difficulty of safeguarding rights is closely related to the difficulty of defining patent rights of fashion products, the differences of regional laws and the higher cost of safeguarding rights.

Because trademark law and copyright law do not include costumes in the scope of protection, it is not illegal to plagiarize designs that are not granted design patents in the United States.

The creative part of a dress design, such as printing, can be protected, but the whole dress has no intellectual property rights, and the trademark law only protects the designer's name or brand logo.

ChristianeCampbell, a partner at Duane Morris law firm, once said: "if an item is protected by copyright, it can not be functional.

Therefore, fashion has never been protected by law. "

It is noteworthy that ChristianLouboutin can be regarded as the main luxury brand that has challenged the grey area of fashion products protection in recent years. After the lawsuit against its red shoe shoes has been filed against a number of courts in Europe for a year, the European Union Supreme Court announced in June this year that trademark trademark red and shoe shapes jointly used by the European Union were protected by EU law to a certain extent.

Christian Louboutin is a major luxury brand that has recently challenged the grey area of fashion products' appearance protection.

Earlier, the Paris High Court also ruled that ChristianLouboutin had the patent rights of red shoe, but in Holland, Switzerland and other countries, its application was rejected by the court. The incident is enough to show the complexity of fashion products in international sales.

However, the European Union has launched a unified system in 2016 to provide a patent system for registered and non registered designers to protect the design rights of clothing and accessories.

The validity of this design patent protection is generally 14 to 15 years, and the length of validity depends on the choice of brand.

Although there is no public information available to count the number of design patents in fashion industry, design patent applications are increasing year by year.

In addition to the international public welfare organizations that provide legal aid to the brand, the company represented by the US SBCLawGroup has experts and lawyers in the comprehensive background of the fashion beauty field. It can provide fashion brands with intellectual property protection services such as brand image, trademark, copyright, patent, license agreement and confidentiality agreement, and help them speed up the patent application process.

04

So far, the law is still not the most effective way to define and copy the interests of designers in the fashion industry, and the plagiarism in the legal sense is relatively low compared with the plagiarism in the industry consensus.

Apart from obtaining compensation, individual brands seek legal channels to deal with them, and their role in changing the overall status of the industry is very limited.

From the dispute between Lv Yan and movie fashion group, we can see that the domestic industry lacks a consensus basis for original design.

This is partly due to the lack of communication in the domestic fashion industry. The different circles of the fashion industry repelled each other. Their pride and Prejudice persisted in the fashion circle and the clothing circle, which hinder the industry from moving towards a more efficient and orderly direction.

When people are going to commercialize high aesthetic standards, they need to familiarise themselves with and adapt to the rules of the business market, realize that the diffusion of "embezzlement" and creativity is the rule of the mass consumer market; and if a large-scale garment business seeks sustainable development, it needs to employ original conscious design talents in the era of globalization, and strive to improve their design capabilities.

Only the constant lifting of competition standards will promote the overall development of the industry.

As suggested by Lv Yan, in addition to legal protection, the fashion industry should set up internal organization and anti plagiarism group. This is beneficial not only for building a unified industry standard, but also for the whole industry, establishing an industry reputation evaluation system, improving the moral standards of employees, standardizing the creative production mode of the industry, and eliminating the fluke psychology of the design process.

At the same time, the domestic apparel industry can also promote the communication and understanding of original topics in different sectors of the industry through fashion week, forum and other national exchange platforms.

In addition, with the improvement of the cognitive ability of the young generation in the country, they will give birth to their own judgement on the original ability, thus forcing the brand to launch a personalized design with higher identification degree on the basis of the trend trend, and develop the trademark style of the brand so as to avoid the similarity of the design.

In a changing industry, it is also important to break down the inherent understanding of original concepts.

Compared with "Originality", the international fashion community now advocates "Authenticity".

MiucciaPrada said in an interview with Vestoj, "no one really cares who is the first person to do it, who is the second or the third.

Today we only have a copy of the copy of others' creation, and the last person who did it is the person who invented it.

MiucciaPrada believes that "originality" is no longer important today.

Today's fashion has little subversive functional innovation, but a constant cycle of trends.

All kinds of clothes have been constantly created in the past one hundred years. Nothing is absolute innovation, but a reorganization of elements.

When designers get rid of the age of sketching and enter the era of inspiration board, they inevitably use other people's creative achievements.

As the artist JerrySaltz said, originality has become an increasingly unimportant indicator. Artists almost always use the image of others.

Whether Off-White's Virgil Abloh, Vetements's DemnaGvasalia or Supreme are the extreme representatives of this trend.

VirgilAbloh packaged the simple zebra pattern through the marketing effect as a burst, making the T-shirt printed with Logo become a teenager's chasing product because of the special meaning of the trademark.

Vetements's DHL T-shirt has become the darling of the high fashion industry by making irony effects in the context of everyday objects replacement.

Supreme has embed Louis Vuitton printing to cooperate with the latter, and DapperDan has clearly manifested this trend from the re creation of luxury brand printing in 90s to the salute of Gucci works.

In the interview with Virgil Abloh, 032C wrote, "in the post-modern fashion, originality has become the least important thing."

In the topic of VirgilAbloh and architect Rem Koolhaas, System magazine takes "no one really owns anything" as the title.

But this does not mean that the fashion industry has lost its moral standards, nor does it mean the failure of the concept of plagiarism.

MiucciaPrada advocates "Authenticity" as a new criterion.

Truthfulness, she believes, is "adding something to what is already there and pushing it forward."

In other words, designers can re create on the basis of creative ideas, and the quality of their creation depends on the input of designers to inject innovative content.

After the overall improvement of the professionalism of the fashion industry and the recognition ability of consumers for quality design, people will make a common judgement on the similarity of different designs and the authenticity of the design, which has become the dialogue basis for the whole industry to explore plagiarism.

Behind the same plagiarism dispute, there is a deeper industry problem.

The fashion industry that has only developed in China in the past 30 years just needs to break the internal bias and open a real enlightenment and dialogue.