How should the fashion industry deal with difficult plagiarism disputes?

As an industry driven by creativity, fashion is inevitably facing the plague of the industry.

With the development of science and technology and the speed of information circulation, the efficiency of the diffusion of ideas has been rapidly improved, but the speed of relevant laws has been delayed, which has greatly reduced the cost of plagiarism. This kind of information asymmetry and speed difference in the gray area of ​​the industry quickly proliferate many 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 plagiarized restricted area. Its business model has been criticized morally. In China, Taobao.com has been blatantly copying luxury brands and designer brands to create huge profits for a long time. Until recently, Taobao has just been listed in the “bad market” by the United States.

In the process of layer-by-layer replication, the creative premium of brands and designers is continuously exploited, ultimately eroding the source of the industry. However, a large number of plagiarism disputes have made the practitioners physically and mentally exhausted, and the industry is often unable to protect the original protection. More importantly, due to the emergence of a series of concepts such as creative reference and cultural appropriation, the definitions and standards of originality are being divided. People of different circles and values ​​endeavor to maintain subjective positions, but it is difficult to improve the definition and protection of rights in operation. It is even more difficult to establish an effective dialogue mechanism in the industry.

The fashion industry is caught in a fixed discussion framework. For example, the framework of various media reports has no new ideas except for the plagiarism case. Because of the lack of objective and neutral evaluation criteria for originality and plagiarism, the legal profession has patents on apparel appearance. The definition is relatively complicated, and public opinion is difficult to discuss the incident in depth. The end result is often not enough.

Recently, in the fashion circle, the riots have once again set off a wave of controversy among the industry. With the development of the situation, this may be the moment when we re-recognize the root of this problem and seek new perspectives and solutions.

01

According to The Fashion Law, the US street brand Off-White has launched a plagiarism lawsuit against the accessories brand Rastaclat for $18, called "Off-Clat c/o Rastaclat" bracelet. The bracelet is being "Off-Clat". And/or the name "Off-Clat c / o Rastaclat" is sold by brands and various retailers including Amazon. The brand also launched a series of lawsuits against multiple retail brands selling fakes. This means that Off-White, which is often questioned by originality, is also actively protecting its intellectual property.

In this case, Off-White believes that Rastaclat's products use their classic quotation marks and red zipper elements to try to confuse consumers and make them mistakenly think that they are buying Off-White products. However, despite Off-White filing a lawsuit, the brand did not actually apply for a patent mark for the appeal element.

In this regard, Off-White believes that in the six-year history of the brand, these two design elements have accumulated trademark assets through a wide range of marketing activities and the resulting consumer word-of-mouth and public opinion effects. Retailers, consumers and the public are already familiar with Off-White products and brand names, and these product elements are specifically linked to Off-White.

Even with the intellectual property protection of the well-known brand icon of Off-White, it is difficult to defend rights.

In July 2018, Off-White submitted a trademark application for the red zipper to the USPTO, but it was initially rejected by the agency in December. The brand is still working on applying for a "red zipper" for tops. Trademark rights for trousers, headwear and footwear.

According to the US Patent and Trademark Office, the definition of red zipper trademark rights is full of potential problems. The zipper strap itself is functional, and the functional product cannot be protected as a trademark. However, the element of the Off-White patent is a red zipper, and the brand claims that red is part of the trademark, but it is believed that this element is not unique in nature.

Different from the trademark law, the patent law does not require the "uniqueness" and "novelty" of the product. The standard defined by it is mainly whether it has the possibility of "confusion." This means that Off-White must prove that the red zipper has established a link with the brand in the perception of the average consumer and provides evidence including advertising expenditures, sales data, third-party media exposure and so on.

It can be seen that even if the brand-name elements of Off-White's well-known brand are protected by intellectual property rights, it is difficult to protect the appearance. Especially for brands like Off-White, its founder, Virgil Abloh, is a representative of the trend of fashioning everyday things in today's fashion industry, and its definition of creative originality is controversial.

02

On April 27th, Lu Yan, a supermodel with 5 million fans on Sina Weibo, released a Weibo, a stone that stirred up a thousand waves. Weibo announced that the designer brand COMME MOI, which was founded by it, officially accused Shenzhen Yinger Fashion Group of suspected plagiarism. COMME MOI was founded in 2013 by supermodel Lu Yan, mainly for urban female consumers aged 25 to 35.

According to the lawyer's letter, the shadows of the fashion group include "Song of Song Song", "YINER", "INSUN Grace", "OBBLIGATO" and many other brands of clothing and COMME MOI The design is highly similar. COMME MOI requested Yinger Fashion Group to immediately remove the aircraft and destroy related products, and apologize to the manager Lu Yan and the brand.

As early as a month ago, Lu Yan had accused the shadow fashion group of plagiarism through his personal media account, and Shadow Fashion Group released the first statement on March 29 to deny the plagiarism allegations, saying that the allegations caused a bad image to its brand. influences. It is worth noting that in the first statement, Yinger Fashion Group, under the name of “a domestic brand designer”, did not specify the COMME MOI.

In the statement, Yinger Fashion Group stressed that as a first-generation multi-brand group company in China's garment industry, which has been established for 23 years, it has a very respectful intellectual property and R&D innovation. The current R&D team has reached 300 people. There is no legal basis for the plagiarism of the clothes mentioned by Lu Yan. Therefore, COMME MOI is required to delete the speech. Otherwise, the legal responsibility of the responsible person will be investigated through legal channels.

However, the public opinion continued to ferment. After the microblog was issued, Lu Yan’s related microblogs were more than 2,000, and received many mediators’ support.

In this regard, Shenzhen Yinger Fashion Group issued a second statement on Weibo on April 30, claiming that Lu Yan and his company infringed the reputation rights of Yinger Fashion Group and its branded apparel, and will destroy the group. The practice of commercial reputation pursues its legal responsibility, and points out that Lu Yan’s banner of using legal means to safeguard his rights lies in propaganda and eye-catching. Lu Yan once again posted a microblog on Weibo to emphasize that she was framed and embarrassed.

Lu Yan said to the fashion headline network that she did not consider taking legal channels at first. She has publicly stated on many occasions that after she has made her own business, she deeply feels that it is very difficult for the clothing enterprises to grow up. It is normal for a hundred people's design team to make mistakes by individual designers. She expects that the other party can have the responsibility of a big company, apologizes and removes related products and will not pursue them. But what surprised him was that Yinger Fashion Group accused her of unfair competition, and she immediately realized that "if I have no right to speak, I will save and pay attention to the designer brand, the industry environment." It will only get worse."

Subsequently, Lu Yan decided to hire a team of experienced lawyers in intellectual property, with agency fees of hundreds of thousands. She is ready to fight the lawsuit. "More importantly, let the whole industry and even the relevant departments pay attention to this matter and promote some substantial changes. The film and television industry is uniting to fight against piracy. Why can't clothing be?"

On the other side, Yinger Fashion Group also insisted on its own position. The group responded exclusively to the fashion headline network. “On the plagiarism that Lu Yan thinks, the legal profession has its own rules. Who advocates who gives evidence? Yan must use legally-recognized evidence to prove her claim, and Shadow supports the use of legal methods to resolve disputes between the two parties."

The group stressed that "the essence of this matter is not the 'plagiarism' itself, but a very purposeful unfair competition behavior, which seeks to maximize its own interests by demeaning competitors' plagiarism. Shadows think of Chinese clothing from beginning to end. The industry should be orderly competition. If it involves plagiarism or infringement of intellectual property rights, it can be solved by legal means. However, with a few so-called 'similar' elements, it is unreasonable to accuse a Chinese women's clothing industry leading enterprise and promote its own brand. Shadow children said no to the porcelain."

Obviously, there is a clear distinction between the definition of plagiarism between Lu Yan and Yinger Fashion Group. The former uses the definition of “uniqueness” in the design circle as the defining standard, while the latter’s ruler is the current law. The design elements of the person are only "similar", not the "plagiarism" in the legal concept, and the source of the material is not the COMME MOI, but the international fashion trend. In fact, merely tracing the source of the design and identifying the original is a very complicated process of research, both in law and in the fashion industry.

The difference in standards creates difficulties in dialogue. The two sides also play an increasingly competitive role in the industry chain, which also exacerbates the tearing of communication. Designer brands such as COMME MOI are emerging as emerging categories in the Chinese apparel market and are beginning to expand to commercialization and scale. Such brands tend to have a style orientation and a fashion point of view, and then gradually consolidate the supply chain. They are more in line with the international fashion trend in terms of design concepts, but they are still relatively backward in terms of capital level and brand management.

Located in Shenzhen, Yinger Fashion Group is based on the apparel manufacturing industry in the Pearl River Delta region. Through mass production, the large-scale clothing business is supported by the mass production in the domestic market and channels. For such typical Chinese apparel companies, fashion awareness is an exotic product that enters the enterprise with the tide of globalization after the company matures.

In the mature process of the domestic market, designer brands and mid-to-high-end pricing commercial brands are beginning to face a positive competitive relationship. For both parties, goodwill is an important brand asset, which also makes the plagiarism incident more serious by both parties. .

03

As far as the current domestic legal provisions are concerned, most legal professionals believe that applying for a patent for clothing is not the most cost-effective means of protection.

The term of protection for a design patent is 10 years and the review period is approximately 6 months. The clothing industry is a typical fast-moving industry. Even if the brand applies for a design patent, the product is usually out of season. Especially for young designer brands, they are weak in legal rights and lack the manpower, energy and financial resources to apply for patents.

Lawyer Liu Yafei said that the design patents were granted for review and authorization, and the period was relatively long. Once authorized, it was required to be paid annually. From the characteristics of the clothing industry itself, the fashion design follows the trend of the times, the market cycle of the clothing style is short, and the quarter is used as the time for the clothing to be placed. The clothing design that really needs 10 years of design patent protection is rare. Therefore, high-cost long-lasting design patents are not suitable for fashion design based on quarterly trends.

In addition to the appearance patent, copyright does not require special application, but it is still difficult to operate in judicial practice. The works referred to in the Copyright Law refer to intellectual achievements that are original in the fields of literature, art and science and can be reproduced in some tangible form.

However, it is worth noting that the scope of copyright does not include practical expressions and functional parts. For fashions that are both creative and functional, how to distinguish between their practicality and artistry, public domain expression and originality expression becomes a difficult problem in determining whether garments can be protected by copyright.

Lawyer Liu Yafei suggested that the constituent elements of ready-to-wear should be split and the rights should be maintained separately. For example, the clothing pattern decoration is copyrighted as an art work, the cloth production is protected by patent products and methods, and the distinctive characteristics of the clothing are protected by the trademark law and the anti-unfair competition law.

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

In July 2018, Diesel parent company OTB sued Zara's parent company Inditex Group for copying its Diesel jeans, Marni sandals design case has won the case. Although the Inditex Group insists that there is a clear difference between its sandal design and Marni sandals, and that Diesel's jeans are not infringing due to lack of originality, Milan court judge Claudio Marangoni still believes that Zara's behavior has constituted plagiarism and infringement, requiring Inditex Group Immediately recall the infringing material and stop selling, and pay $235 in damages for each product.

OTB Group raised the allegations of plagiarism on sandals and jeans design by ZARA, ZARA was first sentenced to plagiarism

The lawsuit began in 2015. According to the OTB Group's allegations at the time, Zara's manufacture and sale of generic goods violated EU intellectual property laws, and the skin patent for Skinzee-SP jeans was registered in the European Union.

Some analysts pointed out that the judgment confirmed the possibility of compensation for registered and unregistered design infringement damage within the EU. It is the first case in Europe. Although the ruling still has the possibility of being appealed, it assists the lawyers of OTB Group. Dentons said in a statement that the move "opens the door to new options for intellectual property enforcement within the EU."

For luxury fashion brands, the difficulty of rights protection is closely related to the difficulty in defining patents for fashion products, regional legal differences and high cost of rights protection. Since neither the trademark law nor the copyright law has included clothing in the scope of protection, it is not illegal to plagiarize the design of clothing that has not been granted a design patent in the United States. The creative part of a costume design can be protected by graphic elements such as print, but the entire garment has no intellectual property, and the trademark law only protects the designer's name or brand logo.

Christiane Campbell, a partner at Duane Morris, said: "An item must be functional if it is protected by copyright. Therefore, fashion has not been protected by law."

It is noteworthy that Christian Louboutin can be regarded as the main luxury brand that has challenged the gray area of ​​the protection of fashion products in recent years. After the patents on the red-soled shoes were filed in a number of European courts for a year. In June of this year, the EU Supreme Court announced that the trademarks used by the brand's iconic red and shoe shapes were protected to some extent by EU law.

Christian Louboutin is a major luxury brand that has challenged the gray areas of fashion product protection in recent years.

Earlier, the Paris High Court also ruled that Christian Louboutin had a patent for red-soled shoes, but in the Netherlands, Switzerland and other countries, his application was rejected by the court, which is enough to show the complex situation faced by fashion products in international sales.

However, the European Union has launched a unified system in 2016 to provide a patented system for registered and unregistered designers to protect the design rights of clothing and accessories. This design appearance patent protection is generally valid for 14 to 15 years, depending on the choice of brand.

Although there is currently no publicly available information to count the number of design patents in the fashion industry, design patent applications are increasing year by year. In addition to the international non-profit organizations that provide legal aid to the brand, the company represented by the American SBC Law Group has experts and lawyers with comprehensive backgrounds in the field of fashion and beauty, which can provide fashion brands with brand image, trademark, Intellectual property protection services such as copyrights, patents to license agreements and confidentiality agreements help them speed up the patent application process.

04

So far, the law is still not the most effective means for the fashion industry to define plagiarism and protect the interests of designers, and the plagiarism in the legal sense is relatively low compared to the plagiarism in the industry consensus. Individual brands seeking legal channels to deal with, in addition to possible compensation, have a limited effect on changing the overall status of the industry.

Only from the disputes between Lu Yan and Yinger Fashion Group can be seen that the domestic industry lacks a consensus basis for original design. This part comes from the lack of communication in the domestic fashion industry. The different circles of the fashion industry are mutually exclusive and each other stands out. The arrogance and prejudice adhered to by the “fashion circle” and the “clothing circle” hinder the industry from moving in a more efficient and orderly direction.

When people push high aesthetic standards to commercialization, they need to be familiar with and adapt to the rules of the commercial market, recognizing that “appropriation” and the diffusion of ideas are the laws of the mass consumer market; Sustainable development requires the promotion of design capabilities by hiring original creative designers in the era of globalization. Only the continuous rise of competition standards will promote the overall development of the industry.

As Lu Yan suggested, in addition to legal protection, the fashion industry should establish internal industry organizations and anti-plagiarism groups. This is not only useful for building a unified industry standard, but also for the supervision of the whole industry, establishing an industry reputation evaluation system and enhancing the industry. The ethical standards of personnel, standardize the creative production methods of the industry, and eliminate the luck of the design process. At the same time, the domestic apparel industry can also promote the exchange and understanding of original topics in different aspects of the industry through national exchange platforms such as fashion weeks and forums.

In addition, with the improvement of the cognitive ability of the younger generation of consumers in China, they will also make their own judgments on the original ability, which will force the brand to launch a higher degree of personalization and recognition on the basis of the trend. The design develops the iconic style of the brand, thus avoiding the similarities in design.

In an industry that changes in time, it is also important to break the inherent understanding of the original concept. Compared to "Originality", the international fashion industry is now more assertive of "Authenticity".

Miuccia Prada said in an interview with Vestoj magazine, "No one really cares who is the first to do this, who is the second, or who is the third. Today we have only a copy of the copy of others. The last person to do this is the person who invented it. Miuccia Prada believes that "originality" is no longer important today.

Today's fashion has few subversive functional innovations, but a constant cycle of trends. All kinds of clothes have been created continuously over the past 100 years. Nothing is absolute innovation, but the reorganization of elements. When designers get rid of the era of sketches and enter the era of inspirational boards as the basis for their creation, they inevitably use the creations of others. As artist Jerry Saltz said, originality is already an increasingly unimportant measure, and artists are almost always using the image of others.

Whether it is Off-White's Virgil Abloh, Vetements' Demna Gvasalia or Supreme are extreme representatives of this trend. Virgil Abloh has made the simple zebra pattern into a burst of marketing effects, making the logo-printed T-shirt a favorite for teenagers because of the special meaning of the trademark. Vetements' DHL T-shirts have become the darling of the haute couture industry by creating an irony effect by replacing everyday objects with context. Supreme has used the Louis Vuitton print to collaborate with the latter, and Dapper Dan has clearly demonstrated this trend from the re-creation of luxury brand printing to the tribute to Gucci's work in the 1990s.

In an interview with Virgil Abloh, 032c wrote, “In postmodern fashion, originality has become the least important thing.” In a special issue of Virgil Abloh and architect Rem Koolhaas, System magazine simply "No one really has anything" as a topic.

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

Miuccia Prada advocates "Authenticity" as the new criterion. She believes that authenticity is “to add something to something that already exists and to push things forward.” In other words, designers can recreate on the basis of existing ideas, and the quality of creation depends on the design. The level of involvement of the teacher in injecting innovative content.

After the professionalism in the fashion industry and the consumer's ability to distinguish high-quality design have been improved, people will make consensus judgments on the similarity of different designs and the “authenticity” embodied in the design. This has also become the basis for dialogue on plagiarism in the industry.

Behind the plagiarism disputes together, there are hidden deeper industry issues. The fashion industry that has only developed in China in the past 30 years just needs to break internal prejudice and open a real enlightenment and dialogue.