They say that imitation is the sincerest form of flattery. That may be so, but in the visionary world of fashion a brand's signature style is the linchpin of its long term success, and if a competitor encroaches on a brand's stylistic territory, it stands to lose its reputation, distinctiveness, goodwill and the profits therein. But how far can a brand protect its signature aesthetic and prevent others from using the same "look" and where does the line fall between inspiration and plagiarism, protecting and monopolising?
Ralph Lauren famously said, "I don't design clothes. I design dreams". It is this aspirational aspect of a brand's signature style that explains why something as esoteric as an aesthetic is arguably a brand's most valuable asset. A fashion house will pour money into developing a unique "look" that is synonymous with its brand and which will serve as the foundation for future collections and the platform for PR and advertising, as well as the main pull for sales. A signature style takes time to develop, involving the work of countless creatives, campaigns and collections. As a consequence, it is unavoidably nebulous and herein lays the problem of its protection.
Unlike this abstract concept of a signature style, the coned bra of Jean Paul Gaultier or the wrap dress of Diane von Furstenberg serve as clear, identifiable metonyms for their brands. They are easier to distinguish and are, therefore, easier (if not necessarily easy) to protect by hanging them on the hooks, or rather hangers, of intellectual property rights (IPRs). However, a brand's signature style is much more difficult to protect. A "style" or "look" is intrinsically diaphanous, making it much harder to affix to specific rights, a problem that was recently considered in a case between Emilio Pucci, Matthew Williamson and H&M.
Pucci v H&M, Williamson
In 1997, Matthew Williamson launched his eponymous line and was soon known for his signature style of vivid colours and kaleidoscopic prints. Therefore, in 2005 it came as little surprise when Williamson was appointed as the Artistic Director of Emilio Pucci, a brand synonymous with swirling, psychedelic patterns and bold colours. After three years at its creative helm, Williamson left Pucci and in 2009 he collaborated with H&M to create a capsule collection. Numerous designers have created these capsule collections with H&M (Lanvin, Isabel Marant and Maison Martin Margiela all produced collections in the same way) and much like those of his predecessors, Williamson's was marketed as "Matthew Williamson for H&M".
However, Pucci soon issued proceedings against Matthew Williamson, H&M Hennes and Mauritz (H&M) and H&M Hennes and Mauritz AB (H&M AB) for copyright infringement and unfair and parasitical competition. Pucci claimed that the capsule collection included two items which reproduced existing Pucci designs. It further claimed that, by repeatedly presenting Matthew Williamson as the former Artistic Director of Pucci, the promotional materials for the capsule collection created confusion in the mind of the public, especially given the nature of the designs, which enabled it to benefit from the reputation, iconic style and know-how of the Pucci brand. Pucci relied on the sale of items on eBay which were marketed as Pucci but were in fact from the capsule collection as evidence of this confusion.
Pucci's claim ultimately failed. Williamson successfully argued that his designs for the capsule were not infringing as they were in keeping with his well-established signature style, citing journalists' references to his skill as a "colourist" and use of abstract patterns. The defence further argued that it would be unfairly monopolistic for Pucci to claim ownership of this type of style as other designers, such as Diane von Furstenberg, Carlos Miele and Missoni, had long used exotic prints and vibrant colours as part of their aesthetic heritage. Regarding the marketing materials, references to Williamson's association with Pucci in articles about the capsule collection were deemed to legitimately relate to his professional career. It was also observed that the adverts for the collection featured the H&M logo and clearly read "Matthew Williamson for H&M". This, coupled with the fact that Pucci and H&M target different customer types at very different price points, meant that there was little likelihood of confusion.
Specific IPRs such as trade marks, registered and unregistered designs and copyright works can be protected. However, the law strives to balance the protection of rights with the preservation of free creativity. Therefore, in the UK, the more amorphous concept of a signature style is not afforded the same protection as to do so could risk monopolism. In many respects, this is a serious concern for brand owners. If a signature style cannot be furnished with the protection of IPRs, how can it be safeguarded from competitive poaching that could dilute a brand's reputation and distinctiveness?
The answer seems to be that brand owners should arm themselves with an arsenal of IPRs to deter infringement by competitors. Firstly, brand owners should identify their IPRs and, where relevant, ensure registration is in place. Appropriate records should also be compiled and maintained, including information such as details of registration renewal dates, licence expiry dates, confidentiality agreements, and evidence demonstrating goodwill or acquired distinctiveness. The rights identified should then be monitored for infringement, while brand owners should avoid breaching provisions relating to unjustified threats of infringement. Infringement and passing off claims present their own thresholds and challenges, but establishing and preserving a web of IPRs will enable brand owners to make the most of the protection that is available to prevent infringing activity.