Fashion: The Species that Eats Its Young

For an established designer with a dedicated customer base and well-known trademarks, cheap knockoffs are a nagging problem.  For an emerging designer, cheap knockoffs can be a knockout blow.  And despite Counterfeit Chic's many years of publicizing the issue (both as a law prof actively working with members the industry and Congress, and also as a blogger), U.S. law doesn't offer much respite -- yet. 

In today's WSJ, Christina Binkley offers a brilliant up-close look at small designers who are bearing the brunt of the knockoff economy.  These emerging designers have borne many of the blows that I've seen over and over again -- a successful piece that wasn't reordered by retailers, who bought the knockoff instead; consumers who may not even know they're buying a knockoff; copies that hit the stores before the real thing; stores that complain to original designers about the imitations in the marketplace (as if the designers could do anything about it!). 

Otrera_scarf_knockoff_WSJ_4-29-10.jpg

Interestingly, the article focuses on 2 examples, a printed scarf by Otrera (original above left, but go to the WSJ for an interactive version) and a Shashi bracelet, that could actually be subject to copyright protection, unlike most clothing designs.  But the point remains:  Emerging designers, who fund their future creativity by selling in the present, can't affort to lose sales to the large, mass-market chains that cherrypick their most successful designs. 

While Christina notes the concern that even the pending Design Piracy Prohibition Act couldn't help emerging designers with few resources, Counterfeit Chic's own longstanding and frequently published opinion is that young and independent designers are exactly the ones who need a bit of legal protection.  (Just a bit, narrowly tailored to fit the problem -- minimalism can make for the best legal style.  But more on that another day, hopefully with reference to yet another new version of the bill, coming sooner (or later) to a legislature governing you.)  Not only can a bit of legal light shine into the dark corners where copyists lurk and change industry practice, but the vast majority of intellectual property cases settle out of court, or indeed without ever filing in court, and thus are relatively inexpensive.

Given that some emerging designers feel left out in the cold when it comes to access to and understanding of law, the launch of the Fashion Law Institute at Fordham isn't a moment too soon.  The WSJ article reminds me that I need to get back to work -- before yet another young designer becomes a large knockoff artist's lunch.