According to The Fashion Law, Swedish clothing retailer H&M is suing LA-based clothing retailer Forever 21 for copyright infringement, trade dress infringement, false designation of origin and unfair competition, over the design of one of its canvas tote bags, which features the groan-inducing or very clever play on words “Beach Please” set against a line of palm trees and a colorful background.
In the suit, filed in the U.S. District Court for the Southern District of New York this past summer, H&M claims that the “Beach Please” design was developed by its in-house team and made available for sale in April 2014. They apparently sold well, and acquired “secondary meaning in that H&M is recognized as the original source of the tote bags.” The company also obtained copyright registration for the “Beach Please” graphic in June of this year. At some point, Forever 21 began selling a nearly identical bag. Per The Fashion Law, H&M alleges, “Defendant has employed one or more companies in China to manufacture and import the infringing product into the U.S. […] Many of the products sold by Defendant are manufactured in China for the Defendant. The Defendant has also been accused of copyright violations in the past.”
Which is true.
Here’s the kicker, though: Both of these low-end, fast fashion retailers are notorious for, ahem, taking inspiration from other designers and artists. In February of this year, H&M settled out of court with Converse after it was 1 of 31 brands sued for trademark infringement. In 2012, H&M was accused of ripping off artist Tori LaConsay’s “You Look Nice Today” sign for use on a variety of products. In 2013, very fashionable people noticed that some of H&M’s looks were pretty identical to what high-end brands like Balenciaga and Céline were sending down runways. Here’s another plot twist for you: According to a report by Business Insider, Forever 21 designers have actually been asked to leave Fashion Week in the past, following accusations that they were taking photos of clothes that subsequently turned up for sale in their stores. There are also those Anna Sui, Betsey Johnson and DVF copies, as well as a slew of indie designer knockoffs. “Hello, Pot? This is Kettle calling. We really need to talk…”
Obviously, nothing stops one company that might be engaging in an illegal, unethical practice from taking steps to stop another company from engaging in the same illegal, unethical practice against it, but the irony is glaring, especially because these tactics have most likely been very profitable for both companies.
Fashion exists in a sort of intellectual property purgatory. In general, most of it is considered utilitarian by law, so the actual physical design of a garment or a bag can’t be copyrighted because whatever creative originality exists in its shape can’t be separated from its function. And no trend is worth the time it would take to get a usually-difficult-to-get design patent. (Note: designers can and have gotten patents for bags but, trust us, the “Beach Please” tote wouldn’t pass the test).
Original prints, pictures, graphics, and patterns, however, can meet the standard to qualify for copyright protection, separate from the design of the article. Interesting because not only is the copyrightable element of the “Beach Please” tote exactly what H&M is accusing Forever 21 of copying, but it’s also the type of thing the company itself is often accused of copying. So why with countless lawsuits against them do they continue to do this?
Because it sells!
Trends come and go quickly, so companies like H&M and Forever 21, both individually worth billions, would probably rather copy a trendy look that’s selling well somewhere else, mass produce it while people are interested, and deal with a lawsuit (or ten) that they can obviously afford and that will probably just settle out of court, anyway. The law is no match when fashionistas want luxury brand styles at bargain basement prices, and are willing to buy nonstop. What you do have to wonder, though, is whether copying in fashion has reached a tipping point, if even those who are copying are crying foul.
Sadly, piracy is in style, and it remains to be seen if anything more can actually be done about it.
We’ll keep you posted on this complaint, and in the meantime if you’re a copyright holder who believes your rights are being violated, please contact The Fried Firm.