A comparison of Valfré's rainbow phone case (left) and Forever 21's case.

Forever 21 came under fire for copying this week and while most instances of fast-fashion copying are perfectly legal, this time may be different. Knockoffs continue to plague the fashion industry, but don’t forget dupes, which are proving to be big business when it comes to cosmetics. And just a year after the AntiCounterfeiting Coalition upset its organization by inviting (and then swiftly uninviting) Chinese e-commerce giant Alibaba to join as a member, the American Apparel and Footwear Association is taking a chance on JD.com, adding the Alibaba rival to its roster.

Copycats, So What?

This week spurred the latest in the unending stream of copying claims lodged by indie labels against fast-fashion giants. While the brand and designs at issue vary, the culprit in each instance tends to come from a small pool of repeat offenders. This time around Valfré, a Los Angeles-based apparel and accessories brand, is calling out Forever 21 for allegedly ripping off its rainbow iPhone case.

While many such copying claims go no further than social media outrage, the potential case at hand is interesting — and could prove different — for at least two reasons. Primarily, Valfré might actually have a case and second, it certainly has the will to sue; the company sued Rue 21 in April for copyright infringement, after the now-bankrupt retailer allegedly copied its cell phone cover designs for a collection of earbuds.

It is somewhat surprising that Valfré’s allegations might give rise to merited copyright infringement claims given the structure of intellectual property laws in the U.S., which one could argue favor the copying-happy fast-fashion retailers. Copyright law has long been criticized by the fashion industry for failing to adequately protect their designs, as this form of intellectual property does not protect useful articles, such as garments and accessories, in their entirety. Creative elements need to be “separated” from the useful aspects of the item and only those elements can be protected, which often proves problematic for fashion.

Nonetheless, original prints or patterns that appear on garments and accessories prove an easier case, which bodes well for Valfré, assuming its rainbow design is, in fact, original. The fact that Forever 21 re-created a somewhat easily separable design is what distinguishes the case at hand from the garment-copying claims that flood social media on a regular basis but fail to transition from the web to the courtroom.

Whether or not more copyright-based infringement claims will begin making their way to court following the Supreme Court’s decision in Star Athletica vs. Varsity Brands remains to be seen (so far, the Puma vs. Forever 21 case was one of the first to make use of the court’s new separability test), but will certainly prove interesting. And if this hypothetical case is, in fact, filed, it will be telling to see if Valfré cites that decision in its complaint.

Dupes Are the New Knockoffs

Speaking of knockoffs, a new(ish) trend has taken hold of the fashion and beauty industries: Dupes. Drug store brands are churning out $7 versions of $40 designer lipsticks that not only bear the same shade as the original, but also make use of look-alike product packaging and sometimes, even similar style names.

Similar to the way fast-fashion brands have filled a void in the market for runway looks at a fraction of the designer retail price, beauty brands are making easily affordable designer-like cosmetics to meet the beauty needs of fervent Millennial consumers, and they are profiting handsomely as a result, while also challenging high-end brands that have devoted countless resources to developing their trademark cosmetics.

Not unlike fast fashion, which falls in a space of legally permissible copying, much of the market’s dupes are perfectly legal. However, things get gray when these dupe-offering companies re-create designer brands’ packaging, something that clearly falls within the bounds of trade dress protection — a type of trademark law that provides protection for the characteristics of the visual appearance of a product or its packaging.

The proliferation of dupes is only gaining steam and with it, a potential rise in litigation. While brands can hardly initiate trademark proceedings over a rival’s use of descriptive terms (think: nude, moisturizer, or tint — commonly used cosmetics terms), if original designs of makeup palettes, bottles, or brushes are replicated, this could give rise to merited trade dress claims. One of the first suits we have seen so far: Worth Beauty’s copyright and trade dress infringement matter against Michael Todd Beauty, which is currently pending in the U.S. District Court for the Southern District of Texas.

What Do We Do About Chinese E-commerce Sites, Anyway?  

Almost exactly a year after the International AntiCounterfeiting Coalition caused mass strife among its longstanding members, including Gucci, Tiffany & Co., and Michael Kors, to name just a few, by inviting Chinese e-commerce giant Alibaba to join (only to rescind its membership offer shortly thereafter), the American Apparel & Footwear Association is taking a chance on a different Far East online retailer: JD.com.

The Washington, D.C.-based AAFA announced this month that JD.com is now a full-fledged member. In this capacity, JD.com said it “will collaborate with international fashion labels on the issues related to intellectual property protection, as the group continues to invest on introducing top worldwide brands to Chinese consumers via its JD.com web site.”

The AAFA’s specific attention on China comes as little surprise given brands’ increasing investment in that market. The move coincides with a recent trademark-centric report that put China at the top of the list of most active countries in terms of trademark filings. In 2016, the Beijing-based intellectual property office accepted 3.7 million trademark applications, a 29 percent increase over 2015 and a massive jump above the activity of the next-closest trademark office, that of the U.S.

Already proving to be a far less controversial development than the temporary International AntiCounterfeiting Coalition-Alibaba alignment last year, JD.com has managed to shy away from the widespread counterfeit-related bad press for which Alibaba is well-known. The Alibaba competitor has doubled down on fighting fakes in recent years. One striking example: In 2015, JD.com announced it would shutter its customer-to-customer marketplace, Paipai.com, after countless efforts to fight counterfeits proved ineffective.

Unlike Alibaba’s short-lived membership in the AntiCounterfeiting Coalition, this alliance just might prove a meaningful one.

 

Julie Zerbo is the founder of The Fashion Law.

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