Take a look at these two tank tops. Each has white polka dots over pastel colors and a stitched flower near the spaghetti straps. They're pretty similar, but no more so than any shirts following a trend. Our blog has shown the difficulty in determining what makes one piece of clothing substantially similar to another here, here, and here. All these point to the hypothetic dangers of extending IP regulation into the fashion industry. However, this picture isn't a hypothetical example – an Dutch court just ruled that the shirt on the left, designed by the Dutch Shoeby Shop, was a substantial imitation of the shirt on the right, designed by Paletti Collections B.V. This ruling, if it stands, will undoubtedly deter innovation in the European fashion industry (we'd link to the ruling, but it's in Dutch)
The EU's decision illustrates two things: first, that Europe and America's IP protection systems in the fashion industry are currently quite different, but second, if a few members of Congress have their way, that the two may rapidly converge.
Here in the states our fashion industry operates with few IP protections. While designers have a right to trademark their company logos and copyright the visual patterns on their fabric, US law currently prevents copyrighting of 'useful articles,' like the cut of a piece of clothing. The EU in contrast has long granted fashion designers strong IP rights. The European Directive on the Legal Protection of Designs protects the “lines, contours, colours, shape, texture and/or materials” of all registered clothing designs. Designers who register their clothes are protected against any 'substantially similar' designs, even those that were only accidentally alike.
Thus on the surface, as compared to the US the European Union affords its fashion designers extensive intellectual property rights. However, in practice designers have rarely exercised those rights. Over the course of nearly two years, 2004-2005, fashion designers registered only 1631 articles of clothing for IP-protection with the EU, none from major labels . The vast majority of clothing during that time went unregistered, and thus unprotected. At the same time, very few designers in the EU have bothered to sue competitors for design infringement (you can read more here). For whatever reason – fear of similar suits brought against them, absence of material loss, inertia – designers in the EU have not felt the need to exercise their strong IP-rights.
This recent ruling may indicate that things are changing in Europe. Take another look at the those tank tops. There are a number similarities, but there are just as many differences – the flowers adjacent to the strap are of different designs, the polka dots on the left tank top are smaller than those on the right, and the spaghetti straps on the left are embroidered. The shirts are different enough that the ruling will almost certainly deter designers from making clothing at all similar to the Paletti Collections tank top. It also means that designers in Europe will be less likely to do what they've always done: imitate, modify and innovate.
Unfortunately for us here in the US, Congress is considering a law that could give US courts the same powers that made this kind of decision possible in Europe. As readers of this blog may remember, HR 2033 will extend a three year copyright protection to fashion designer's works, preventing any 'substantial imitations' like the tank top above. We have explained several times the danger of such regulation. This recent ruling only serves to indicate where we may well be heading.