Why young designers are using social media to shame fast fashion copycats

A trend started by Instagram account @diet_prada looks to expose copying by fashion giants. The account with 2.5 million followers, up from under half a million in 2018, posts images of alleged copies next to designs made by smaller designers.

Given the legal complexity in this area, it’s not surprising they have taken this route.

Available rights

For the unestablished designer, the rights available to them are numerous but potentially complicated; Brexit hasn’t helped. In particular, a piece of clothing may be protected by any or all of the following in the UK:

1. Copyright
2. UK Registered Design
3. Cloned Registered Community Design
4. 10/15-year UK Unregistered Design
5. Continuing Unregistered Community Design
6. New 3-year UK Unregistered Design
7. Passing off rights
8. Trade mark (although this is limited)

It might be that having more options is not necessarily a good thing. Asserting each requires different evidence and attracts extra costs: cash-strapped designers will need legal advice on pursuing claims cost-efficiently.

Complexities

And that’s not the end of it. There are certain other legal complexities within these rights insofar as they apply to fashion. The following further complicate the matter:

• Will the UK do away with its closed list of works (which doesn’t seem to fit clothing) for the purposes of copyright subsistence and follow the CJEU decision in Cofemel (C‑683/17) where clothing was found to be protectable by copyright?
• For unregistered community designs, and their UK clones, first disclosures outside the EU and UK respectively may novelty-destroy the design right. The solution seems to be simultaneous worldwide disclosure, though this position is not yet clear. For example, is merely posting a design on a website accessible worldwide a first disclosure in every country simultaneously?
• The Court of Appeal are on a run of five cases finding registered designs not infringed, which doesn’t on its face incentivise registration. However, the January 2021 IPEC decision in Rothy’s v Giesswein [2020] EWHC 3391 (IPEC) finding registered design infringement in ballerina shoes may provide some comfort.

All things considered, it’s not easy for independent designers to assert their rights. The UK legal framework could do with some clarification for the purposes of the fashion industry at least.