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The latest copyright case to stem from the fashion world arises

By Holly Hernandez,2014-06-26 18:39
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The latest copyright case to stem from the fashion world arises ...

By Meera Patel

    Topshop v Chloé

High street retailers feel the pressure as luxury brands wake up to their worth and

    crack down on copycat designs, how will the legal protection of branding change the

    industry and attitudes of consumers?

The latest intellectual property case to stem from the fashion world arises between haute

    couture house Chloé and the high street haven of Topshop. The legal protection of luxury

    branding and their designs is a vital and fascinating issue due its economic effects on an

    industry worth an estimated ?8 billion. The impact of copyright infringement is significant as

    it draws boundaries between the high street and designer brands allowing for these two

    different markets to exist and for each to maintain their niche. If intellectual property rights

    did not exist to protect the work of designers and their companies, they would have no

    incentive to invest in building up a brand if only to have it reproduced and devalued. As the

    risk proceedings between luxury brands and high street retailer’s increase, the effect on the

    industry will surely and hopefully compel high street brands to further their originality,

    thereby driving them to take more commercial risks.

July 2007 witnessed Chloé (part of the Richemont luxury goods group) force Sir Phillip

    Green’s Arcadia group to discard almost two thousand dresses. All of which looked

    uncannily similar to the lemon yellow mini dungaree dress (Chloé See collection). The copy

    constituted an infringement of their design rights, as the overall impression of the Topshop

    dress was too close to that of Chloés.

774 of ?35 look-alikes to the ?185 original had already sold before Chloé issued its lawsuit.

    It is reported that the Arcadia group paid ?12,000 to Chloé out of court to settle the matter

    and withdrew the dresses. Other examples of Chloés zero-tolerance attitude include the

    action pursued against Bananasoup. The internet retailer who attempted to sell a knock off

    of the Chloé Paddington bag (as seen adorning the wives of footballers with its

    characteristic padlock). Even Kookai felt Chloés wrath as they attempted to trade their

    version of the Chloé Silverado bag.

Effectively as luxury brands endeavour to stamp out the counterfeits lurking the high street

    they aim to protect their branding, an intangible asset which businesses are now

    increasingly aware of the need to defend. Their brand is their investment, as money has

    been poured into creating a new design, advertising, marketing, promotional works and after

    sales service. To see high street copies act as almost parasites to this is what they are

    trying to prevent from occurring. We need only to look to the Burberry/Chavs episode, in

    which the upmarket Burberry brand became the British football hooligan uniform of the

    season. It seemed as if overnight a branding synonymous with opulence found itself tainted

    with the image of the opposite. In May 2004, when Monsoon took legal proceedings against

    Primark, Monsoons Chief Executive Rose Foster expressed similar views ‘We take

    infringement of our design and copyright very seriously...the individuality of its designs and

    the flair and ability of its designers’.

It is interesting to note that most cases have been settled out of court in order to protect the

    public image of the retailers involved. As having their allegations scruntised by the public is

    sure to add a stigma or public disapproval to their brand. Most intellectual property cases

    are settled very early on as it is important for the side who is infringing to cut their losses

    immediately. It is easier for Topshop to settle the dispute, find a new line of dresses and

    profit from these instead. Another example of design right infringement includes the action

    pursued by Jimmy Choo, who forced Marks and Spencer to withdraw thousands of its

    handbags. The ?9.50 M&S bag looked almost identical to the Jimmy Choo ‘Cosmo Silk

    Satin Evening bag with jewel buckle’ which Choo sells for a staggering ?495. Much like

    Chloé this is not their first triumph. Their initial IP victory was against New Look, where they

    forced the high street retailer to pay ?80,000 in copyright infringement damages as well as

    withdraw shoes based on Choo designs.

Designers are now realising the importance and value of their brands, not only are clothing

    and shoe designs being protected but ‘smell a likes’ are being caught under the law as well.

    A British judge ruled in favour of L’Oreal in 2006 as it claimed the smell and packaging of its perfume had been copied by the Belgium company Bellure. In particular the Bellure

    imitations were similar to Trésor and Miracle by Lancôme as well as Anaϊs Anaϊs and Noa by

    Cacharel. The solicitor acting for L’Oréal commented ‘This is a significant judgement for

    brand owners and the first successful trail under section 10 (3) of the Trade Marks Act. The

    judge held that ‘free riding’ off a brands reputation is not an acceptable practice.

    Infringement even without the existence of any likelihood of confusion is a novel concept in

    the UK and one that the market will have to get used to’. The market for fragrances is highly

    competitive, with fragrance companies investing millions of pounds into the new perfume,

    packaging, bottle moulds, advertising development, models and market research. Tresor, a

    favourite with the traditional clientele, achieved annual sales in the UK in excess of ?3

    million.

In recent times however a solution may have been found to this dilemma, as smarter

    retailers hire in ‘guest’ designers to lend their expertise to the high street (for example Julien MacDonald for Marks and Spencer or Karl Lagerfeld for H&M), this results in huge profits as

    well as the designer like quality and originality which high street retailers would not be able

    to obtain otherwise. Maybe this could be the way forward to maintain designer individuality

    with the added bonus of high street affordability? Not only are distinguished designers

    lending their name to the high street but celebrities are cashing in too (for example, Kate

    Moss and Madonna). How will a designers worth be able to compete against celebrity

    branding? Can celebrities themselves face the threat of copyright infringement?

As the Topshop v Chloe case adds to the many similar cases that precede it, a general

    increase in searching out for such copycat behaviour can also be noticed. In July 2007, Dids

    Macdonald, chief executive of industry watchdog Anti Copying in Design said ‘Copying is

    endemic within the industry. This year we have seen 220 settlements 20% of which have

    been on behalf of the fashion industry. The effect of this has pushed the high street into thinking carefully before it takes its ‘influence’ from the latest runway collections as well as

    finding new collaborative type projects to stand out from the crowd.

For further information and advice please contact:

Sebastien Oddos

    Solicitor (England & Wales)

    Avocat (France)

    T: +44 (0)20 7553 9932 F: +44 (0)20 7490 5060 so@europeanbusinesslawyers.com

Or

     Steen Rosenfalck

    Managing Partner T: +44 (0) 20 7553 9931 F: +44 (0) 20 7490 5060 M: +44 (0) 7736 634727 sr@europeanbusinesslawyers.com I: www.europeanbusinesslawyers.com

The material contained in this article is provided for general purposes only and

    does not constitute legal or other professional advice. Appropriate legal advice

    should be sought for specific circumstances and before action is taken.

     ? Miller Rosenfalck LLP, November 2007

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