As New Zealand’s favourite week of fashion arrives, our designers will be putting the final touches to looks they hope will be the next big thing. Inevitably, many looks will be inspired by the work of other designers - Ralph Lauren recently (and very frankly) summed up his own career as “forty-five years of copying”. While imitation is often perceived as flattering and indeed, evidence of success, there is a fine line between “inspiration” and unauthorised copying, which can amount to copyright or trade mark infringement, passing off, misleading conduct or forgery.
Every so often a fashion house will turn to the courts when it considers that a competitor has crossed the line and copied their work.
LOUBOUTIN, RIHANNA AND TIFFANY’S
Famously we have seen Christian Louboutin fight to protect exclusivity in red-soled high heel shoes against Yves Saint Laurent in America (a trade mark infringement battle which it won, in part) and against Zara in Europe (a copyright claim which it lost).
This year the fight has reached Hollywood. There is nothing like a multi-platinum selling artist to pull a retail fashion giant back into line, and that is exactly what Rihanna has done. Multinational brand Topshop created the “Rihanna Tank” featuring an image of the famed Barbadian singer in a headscarf with curled locks. After complaints from RiRi, who has trade marked her name, Topshop rebranded the shirts as the “Headscarf Girl Tank” and the “Icon Tank”. But this did not sufficiently address Rihanna’s concerns, and she sued Topshop for $5 million over its continued sales of the shirts.
The UK High Court found that Rihanna had built up sufficient goodwill in her image (both as a musical artist and style leader) to support a claim for passing off. It helped that, at the time, Rihanna was in negotiations to design a range for high street fashion chain River Island, showing a market value for her endorsement. By using her face, the Court held that Topshop had misled purchasers into believing that Rihanna had authorised the use of her image, and that fans would buy the shirts on that basis. The damage caused to Rihanna’s goodwill, and the loss of merchandising sales through the unauthorised use of Rihanna’s image, were part of the reason the Court found in Rihanna’s favour.
Tiffany’s had a win in 2013 when it successfully stopped Costco from selling “Tiffany” rings. Costco had been advertising “Tiffany” rings in store, referring to the sixpronged high-set diamond on a white-gold ring. It took some time for Tiffany’s to notice the infringement, as Costco conveniently only used the “Tiffany” reference in store, out of trade mark watchers’ prying eyes. Costco was ordered to stop using “Tiffany” to sell its products and infringing the TIFFANY trade mark.
On the other hand, Tiffany’s was cut a hard blow in 2010 when the US Supreme Court found that eBay was not required to check the authenticity of “Tiffany’s” jewellery being sold on the site. eBay’s advertising was held not to infringe copyright as some of the jewellery was genuine (though Tiffany’s showed that approximately 71% of the “Tiffany’s” labelled jewellery on eBay was counterfeit).
DENIM WARS: TRUE RELIGION AND G-STAR RAW
Closer to home, we helped last year when unauthorised copies galore were available in the form of counterfeit True Religion jeans which were sold through “pop-up” stores in Auckland. Their discovery led to the first criminal conviction in New Zealand relating to the sale of counterfeit clothing. For Guru Denim (the owners of the True Religion brand) the counterfeiting meant not only a loss of sales, but a loss of goodwill when the counterfeit jeans inevitably failed to live up to the brand’s reputation for quality.
Now the well known jeans label G-Star Raw has claimed that Australasian jeans retailer Jeanswest has copied its distinctive “Elwood 5620” design in the “Dean Biker Slim” jeans, and has filed copyright infringement proceedings in the New Zealand High Court.
With fashion week now wowing the crowds we wait to see where the designers’ “inspiration” has been drawn from this year. As designers come under pressure to create the next big thing, originality becomes more difficult and drawing on existing ideas becomes harder to avoid.
While some treat this as just part of what the fashion industry is, others fiercely guard their design assets. It can help to ask: is this new design “inspired” by what went before, or is it simply a rip off?
Designers may well be watching the catwalk not only for the next big thing, but also for their last big thing walking down the runway with someone else’s name on it.