The fast fashion industry is powered by a constant need for new ideas inspired by the latest trends. However, an increasing number of designers have begun to accuse brands like Shein, H&M and Pretty Little Thing of committing copyright infringement by taking their designs.

It has always been common for fast fashion brands to take inspiration from the biggest industry names, and in some cases to reproduce certain items of clothing directly. This allows these businesses to offer trendy apparel at lower prices than their designer counterparts, although it exists in something of a legal grey area and there are some occasions on which these companies cross the line.

While imitation of popular trends is one thing, some independent designers have recently accused these businesses of directly taking their work and selling it, or of reproducing unique designs that qualify for copyright protection. Here, the intellectual property experts at JMW Solicitors explain the elements of a design that qualify for protection, the different legal considerations that factor into cases of copyright infringement in the fast fashion industry, and how smaller companies or designers can protect their work from infringement.

Is the fast fashion industry breaking the law?

Fast fashion thrives on taking inspiration from popular designs, or in some cases replicating them directly. This has long been the case, and accusations of intellectual property infringement have arisen many times over the years as a result. Companies including Forever 21, Fashion Nova, ASOS and Shein have all faced legal action for copyright and trademark infringement in cases where their designs look similar to those of big-name designers. Despite this, the process continues, and it may surprise you to learn that this is completely legal in many cases. 

There are several factors that affect the legality of imitating a design, but the main one is that the rules that govern copyright are necessarily limited in how they apply protection to artistic works. When it comes to clothing, copyright protection only applies to certain elements of a design that are unique. Anything relating to the function of a piece - for example, the shape of a t-shirt - is ineligible for protection, as it is not distinctive or original to a single product. 

A particular pattern or colour scheme that makes an item distinctive may qualify for legal protection, but not in all cases. For example, while many associate the iconic red-soled shoe with designer Christian Louboutin, a French court ruled in 2012 that an imitation produced by fast fashion chain Zara did not infringe on the designer's intellectual property rights.

There are no definitive rules as to how this is applied, and it can be ambiguous. This is why it is vital to consult an intellectual property solicitor on any matters before making a decision - with their experience, the team at JMW Solicitors can help you to determine whether your intangible assets - including designs, logos, company and product names, and others - infringe on someone's intellectual property rights. We can also support you to register your intellectual property, and monitor for infringement by others to ensure that your assets remain protected.

The fast fashion industry often thrives on the fact that this can be ambiguous in many cases - this allows businesses to imitate the highest-fashion trends without committing infringement, by reproducing an original work as closely as possible, but only within the gaps created by copyright law.

How can smaller designers respond?

The need to constantly innovate on the part of the fashion industry has led designers to look to a broader range of sources for inspiration. In some cases, this has meant smaller designers whose work draws attention on social media platforms like Instagram.

The most important thing you can do if you are concerned about your work being infringed upon - whether you are a small designer or a multinational corporation - is to understand how copyright law applies in these cases. In this way, you can recognise instances of copyright infringement (as it is seen in the eyes of the law) and take action.

You should contact an expert intellectual property solicitor to discuss this before taking any action. Your solicitor should manage communications on your behalf, as this can help to ensure the case is brought to the best resolution for all parties involved.

How can I recognise copyright or trademark infringement?

As we have said above, it is often legal in the fashion world for businesses to imitate designs; so, while many designers may feel that their rights have been infringed upon, this is not always true from a legal perspective. Here, we will use the example of a t-shirt bearing an illustration of a cactus to illustrate the various intellectual property rights that may apply.

In the first instance, the idea of adorning an item of clothing with a cactus cannot be protected. Intellectual property laws govern the expression of ideas, but not the ideas themselves, meaning that anyone is free to design a t-shirt with a cactus on it without infringement of someone else's IP rights.

An image of a cactus would likely be ineligible for registration as a trade mark, unless it was modified in some way to make it unique. For example, a cactus design that bore a company logo or that was arranged into a distinctive shape might qualify for trade mark registration, but without advice from an intellectual property solicitor, it can be difficult to determine the eligibility of a particular mark.

If you successfully secured a trade mark registration for your cactus image, it would be illegal for someone else to print a design with the same cactus, or one that was sufficiently similar. However, you should also take care that your design does not infringe upon any existing trade marks - if someone else already owns a similar cactus as a registered mark, you would be guilty of infringement by selling your design.

An illustration or photograph of a cactus is protected by copyright. This means that it would be illegal to produce a design featuring a specific image of a cactus, unless:

• You produced the image yourself
• You employed someone else to produce the image
• You have purchased or licensed the rights from the creator
• The image was published under an open licence

In many cases, it would also be illegal to recreate the image or produce a similar version. If you wish to produce items of clothing featuring a particular piece of artwork, speak to an intellectual property solicitor about the possibility of licensing the copyright to the image you want to use.

How can designers protect their intellectual property rights?

The best way to protect your intellectual property rights is to register any eligible assets as trade marks, and to monitor for infringement. Intangible assets such as a logo, company name, or even design elements that are common in your work may qualify for protection, and this can ensure that you have the legal right to fight back against infringement. If you sell in more than one territory or market, you may need to register your intellectual property in each area separately, as these rights only apply to particular jurisdictions.

Unlike trade marks, copyright protection applies automatically and there is no need to register. Another difference is that copyright law generally applies internationally, which means that you may be able to take action even if your work is infringed upon outside of your home jurisdiction.

If you identify examples where you believe your rights have been infringed, contact a solicitor for advice. The team at JMW has significant experience representing the interests of businesses across the UK in intellectual property matters. This includes everything from registering and defending trade marks to the management of intellectual property portfolios, and working with overseas firms to protect IP on an even wider scale. We can scale our services to meet your specific needs, so contact us today to learn how we can help you.

To discuss an intellectual property matter, call our team today on 0345 872 6666, or fill in our online enquiry form to request a call back.