Originally from Dispute Resolution Journal

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I.     INTRODUCTION

The fashion industry is driven by trends.  Many of these trends are cyclical, while others are born every year.  Whether it’s a reemerging or a new trend, retailers fight to get consumers’ business by trying to create the best iteration of these trends.  Some retailers put a unique spin on these trends by adding their own designs, logos, or patterns, while others simply recreate an initial trend that they see. After working for one of the most recognized retailers in the world, I saw first-hand how retailers design their products.  Retailers are constantly looking for these trends by observing what people are wearing on the street or taking inspiration from artists, musicians, architects, or a variety of other places.  Once retailers think they have found a trend, they try to figure out when the right moment is to infuse it into their stores.  High-end designers (i.e., Chanel, Prada, Burberry) are usually the first to try a new trend, then the mass-market brands (i.e., Gap, Old Navy, H&M) follow as fast as they can.

Since retailers are so often creating versions of the same trends and styles, many intellectual property disputes have arisen over these designs; however, for most of these retailers, it is often not worth trying to prove that their brand’s design has been copied. For those that do attempt to protect their designs, there is currently very little regulation in place to protect fashion designs and getting a patent is extremely difficult, if not often impossible, in many of these situations.  Thus, many companies have resorted to highly-publicized, expensive, and drawn-out litigation which is not initiated—let alone resolved—until after another brand is already selling the supposedly copied design.