The Law of Fashion
To understand how fashion law applies to the conduct of fast fashion companies, we spoke with Graham Wetzbarger, a luxury goods authenticator, and Barabara Kolsun, a fashion law expert with decades of experience advising top fashion brands.
To understand how fashion law applies to the conduct of fast fashion companies, we spoke with Graham Wetzbarger, a luxury goods authenticator, and Barabara Kolsun, a fashion law expert with decades of experience advising top fashion brands.
To understand how fashion law applies to the conduct of fast fashion companies, we spoke with Graham Wetzbarger, a luxury goods authenticator, and Barabara Kolsun, a fashion law expert with decades of experience advising top fashion brands.
The Law of Fashion
When we think about the fashion industry, we think about the big brands we know: Adidas, Chanel, LV, Coach. We think about the supermodels that are all over our social media: Gigi Hadid, Kendall Jenner, etc. We might even think about New York Fashion Week and other influencers who have taken steps into the world of fashion.
One of the fashion industry’s more recent topics has been fast fashion and the impact that it has on us, our environment, and the fashion industry. Shein is a Chinese online fast fashion brand that sells clothes at extremely low prices. Many people refer to Shein as a “hit or miss” site as it is never clear what kind of clothing a customer will receive. A buyer might receive an article of clothing that is perfect for them or something that is very poor quality. While some have praised Shein for offering their customers trendy clothing at cheap prices, Shein has been repeatedly accused of copying the designs of both big brands and small independent designers.
When Shein copies designs from others, what kind of intellectual property laws might they be breaking? Intellectual property refers to any type of work or invention that has been created by human intellect and includes works of art, designs, literary works, music, designs and symbols, etc. There are four types of intellectual property: patents, trademarks, copyrights, and trade secrets. Intellectual property (“IP”) laws protect certain types of intellectual property. In the fashion industry, copyrights and trademarks are the most relevant types of intellectual property to be applied to this field. Because U.S. intellectual property laws protect some ideas and not others, it is often difficult to apply these concepts to fashion designs. This is why we called on Graham Wetzbarger and Barbara Kolsun, two experts in the fashion industry who were able to help us better understand fashion law and the impact that Shein and fast fashion companies have on big brands, small designers, and the fashion industry.
We first talked to Graham Wetzbarger, the owner of Luxury Appraisals and Authentications (https://luxury-appraisals.com/), a consultancy for the fashion industry that authenticates and appraises personal wearables such as bags, belts, shoes, etc. Graham provides authentication of luxury goods and counterfeit detection for individuals, businesses, museums, and corporations, helping people and organizations know the value of the items that they own, or are buying or selling. Earlier in his career, Graham worked as the Chief Authenticator at TheRealReal, and as the head of appraisals and authentications at Bag Borrow or Steal. Graham is also the co-founder of the Authentication Institute of America, the founder and CEO of TheFashionDetective.com, and the Chief Authentication Officer of My Markit. As he gained experience in authenticating, Graham realized learning more about the law would give him a holistic understanding of the issues he and his customers face. So, he attended a fashion law “boot camp” at Fordham University School of Law to learn about many areas of law that apply to fashion, including the legal protections for fashion designs.
We also interviewed Barabara Kolsun, a fashion law expert who is currently a professor at Cardozo Law School in New York City and the Director of the FAME Center at Cardozo. But she has been a lawyer in the fashion industry for over 35 years, working at or representing a long list of well-known brands: Ralph Lauren, Tommy Hilfiger, Calvin Klein Jeans, Kate Spade, 7 For All Mankind, Stuart Weitzman, and New York and Company. Professor Kolsun has written textbooks about fashion law, and currently teaches two courses at Cardozo Law School - fashion law and a fashion law practicum. (See https://www.amazon.com/Business-Law-Fashion-Retail/dp/1531016197.)
Interview with Graham Wetzbarger
Our interview with Graham gave us a lot of information about IP laws in the fashion industry. Graham explained that IP laws cannot protect the clothing itself as it is a practical item. For example, if t-shirts and pants were patentable, others would be restricted from manufacturing t-shirts and pants. So, the law does not permit functional fashion items to be patented, but it does permit unique designs to be patented (such as Nike patents for sneaker designs). We asked Graham about IP laws in the fashion industry, and he explained how logos are used by big designers to avoid trademark infringement, and his work authenticating luxury items:
Graham also explained how these laws are applied here in the US and abroad in Europe. He also briefly explained how fast fashion brands are able to work around these laws.
So while fast fashion brands like Shein have ways to work around these laws, luxury brands take steps to protect themselves. We asked Graham for his opinion on exactly what these luxury brands can do.
Interview with Barbara Kolsun
Our interview with Professor Kolsun also gave us insight into how fashion law applies to Shein and other fast fashion companies. Professor Kolsun explained the concept of counterfeits. Counterfeiting is the literal copying and using of trademarks from another brand’s item. For example, fake designer bags that include the name brand’s logo are counterfeits. She also explained the difference between a counterfeit item and a knockoff. As counterfeits are the literal copying of another item, including the logos, knockoffs are items that are slightly different from the item they are mimicking. The makers of these goods are not putting the well-known logos on the products, and therefore not trying to represent that their product is a product of the famous luxury brands.
Professor Kolsun explained to us the differences of infringing vs counterfeiting, and the criminal, law enforcement, and litigation aspects of these issues.
Professor Kolsun explained her perspective that the United States and other countries do have strong intellectual property laws, and how these laws can be useful.
While there are laws to protect designers, small businesses/designers have a much bigger disadvantage than luxury brands do. Professor Kolsun explained what these disadvantages for small designers are under the law.
Lastly, Professor Kolsun gave us more perspective into US and European law.
Conclusions
Professor Kolsun and Graham were great resources to help us better understand intellectual property laws applied to the world of fashion. This knowledge combined with their knowledge of different fashion brands gave us insight into how to view Shein and other fast fashion companies that often copy the designs of other designers big and small.
Sometimes when Shein copies the designs of another, it is violating U.S. IP law, but other times it is unclear because IP law protects only certain aspects of a fashion design. The primary laws in the U.S. that apply to Shein copying the designs of others are copyright and trademark. Trademark laws protect logos, and copyright laws protect design elements like artwork on clothing. However, U.S. laws don't protect the fit and cut of the garments. Many of the legal repercussions that are seen occur when companies or individuals are caught importing large amounts of counterfeit items. The U.S. laws target and punish counterfeiters (those who make and import counterfeit products), not customers buying counterfeit goods. Purchasing counterfeit products can often be seen as a socially acceptable thing to do in the U.S. While this is the case in the U.S., other countries are much more strict such as Europe. European Union regulations provide protection for Unregistered Community Design (a three-year protection for designs that are in the market) and Registered Community Design (a 25 year protection for certain designs) that are more protective of fashion designs than the laws in the U.S.
So in the end, what should small designers do when their designs are stolen? Fast fashion companies often rely on the model of copying designs and by the time that copying is discovered and a complaint is made, the fast fashion company has already sold its inventory of the copied item. Small designers are at a disadvantage because they cannot afford the large legal teams that famous luxury brands use to bring lawsuits against companies like Shein that copy designs and logos and then quickly move on to the next design. It is a good idea for these smaller designers to at least carefully document the designs they have created.
References:
https://cardozo.yu.edu/academics-and-clinics/centers-and-institutes/fame-center
https://copyrightalliance.org/is-fashion-protected-by-copyright-law/