Fashion law, otherwise called apparel law, is an evolving forte or talent so to
speak that includes issues encompassing the life of a piece of clothing from
origination to brand assurance. Fashion law clients comprise of mostly design
houses, wholesalers, tailors, modeling agencies, retailers, and photographers.
Since the field is not one which a person would think of normally, there are
very less institutions in India as well as abroad that offer young to- be
lawyers to specialize in the fashion industry. This article deals with the
important case laws which specifically focuses on the nuances of the fashion
Fashion is a part of our everyday life. It has been a part of process of
evolution since the inception and has bloomed into a very independent and
separate industry itself creating new brands and businesses and providing
employment to numerous and contributing, what is, a huge chunk of the nation's
Fashion is a form of art and thus, this industry is based on the
creativity and ideas of the designers. Exclusivity is tool of every brand and
business operating in this market that approaches the snobbish appeal to a
certain class of people making them different from the others. The bigger the
brand, the greater is the appeal and thus, greater is the demand of the product
and monetary benefits. This act of copying or counterfeiting poses a great
threat not just to the existence of multi-national fashion brands in India, but
also to the economy.
Fashion lawyers assist their clients on legal issues confronting the style,
material, clothing, extravagance, footwear, gems, and beautifying agents-
cosmetic businesses. These run the extent from authorizing, marketing,
conveyance, and diversifying contracts to licensed innovation/ intellectual
property, business, and labour related issues.
They involve security,
manageability, and consumer protection issues. Different parts of corporate,
land, assessment, and business law additionally become possibly the most
important factor of fashion law. Fashion attorneys play out a wide scope of
obligations from drafting and negotiating contracts to acknowledgement and
litigation of trademark, copyright, and other IPR related issues.
Thus, cometh the need of IPR laws tot protect the intellectual property ,i. e
the designs of the designers from getting copied and them getting striped off
their rights over their designs. The laws in India that protect the work of the
designers from design piracy are majorly Copyrights act and Design act, but
trademarks act and Patents act also works in Chorus.
Case study 1:
Adidas America Inc V Skechers Usa Inc:
Adidas sought preliminary injunction against Skechers for infringement and
dilution of Stan smith trade dress and three- stripe mark. District Court issued
preliminary injunction prohibiting sketchers from selling two styles of shoe.
Ninth circuit affirmed findings as to Onixshoe, but reversed preliminary
injunction on cross court shoe.
In this case, Plaintiff adidas America Inc filed a motion for preliminary
injunction against defendant Skechers USA Inc under claims of:
- Infringement of adidas unregistered stan smith trade dress.
- Infringement of adidas three-stripe trademark ; and
- Dilution of adidas three -stripe trademark
The U.S District Court of Oregon granted adidas motion for preliminary
injunction prohibiting sketchers from selling two styles of shoe- alleged by
adidas to infringe and/or dilute adidas' trade dress and trademark. Sketchers
and adidas are direct competition holding the second and third market share
positions in the footwear industry in the United States (behind Nike). Adidas
sells many styles of shoes, but places emphasis on its stan smith shoe and
products adorned with its three-stripe trademark.
The defendant sells two shoes
at issue here; the Onix and the Cross court. Adidas alleged that the Onix
infringed its Stan Smith trade dress , and the Cross court infringed and diluted
its three-striped mark.
Adidas three stripe mark and Skecher's Cross Court:
First, the ninth circuit found that the district court did not abuse its
discretion in finding a likelihood of success on the merits for both the
infringement and dilution claims.Despite the parties litigious history,
sketchers continued to adopt confusingly similar marks and the ninth circuit
placed emphasis on the high degree of recognition and strength of adidas mark as
well as the relatedness of the goods to support the claims. Lastly, the Ninth
circuit reviewed the district court's finding of likelihood of irreparable harm
and reversed the district court.
Adidas irreparable harm arguments centered on
sketchers product being of inferior quality. However, the ninth circuit found
that this theory was inconsistent with adidas arguments that the likelihood of
confusion for sketchers' s cross court shoe would be post-sale confusion-
that is , confusion would occur when the public is viewing the sketcher's shoe
from a distance. The cross court shoe contained numerous sketchers logos and
The court disposed of adidas contradicting arguments by stating.
How would customers who confused cross courts for adidas shoes be able to
Surmise , form afar, that shoes were low quality… Even if sketchers does make
inferior products, there is no evidence that adidas' theory of post- sale
confusion would cause consumers to associate such lesser -quality products with adidas.
The Ninth Circuit thus reversed the Preliminary injunction issues on
Sketcher's Cross court Shoe.Judge Clifton concurred in part and dissented in
part, stating that both Original preliminary injunctions should be upheld.
Case study 2:
Star Athletica ,Llc V Varsity Brands,Inc:
The recent landmark case- Star Athletica, LLC v Varsity Brands, Inc:
likely to have an impact on the fashion industry in the United States. The case,
which went to the US Supreme Court, centers on the copyrightability of designs
on the surface of cheerleader uniforms and the concept of separability, which
is a pre-requisite for a garment or other useful article to be protected under U.S copyright law. As copyright law does not seek to protect or create a
monopoly over useful articles, and as garments, dresses, shoes, bags and so
forth are considered useful items, they don't qualify for copyright protection
as a whole.
Only design features that can be separated from a garment or other utilitarian
or useful item, so to speak, qualify for copyright protection in the United
States. The whole issue has been a major source of frustration for designers in
the United States for some time because it means that only certain aspects of
their garments, and not the garment as a whole, are protectable.With that as a
baseline, fashion businesses in the United States are using IP in interesting
and creative ways.
For example, we now see growing reliance on design patent
protection, even though it is more expensive and time-consuming to obtain than
copyright protection. More businesses are also relying on trademark protection
to protect their brands and trade dress (i.e. the appearance and packaging of
The first element of a copyright infringement claim is ownership of a valid
copyright. A valid copyright extends only to copyrightable subject matter. The
copyright Act of 1976 defines Copyrightable subject matter as original works of
authorship fixed in any tangible medium of expression.
Works of authorship
include pictorial, graphic and sculptural works Section 102(a)(5) which the
statute defines to include two-dimensional and three-dimensional works of fine,
graphic, and applied art, photographs, prints and art reproductions, maps,
globes, charts, diagrams, models and technical drawings including architectural plans.And a work of authorship is fixed in a tangible medium of expression when
it is embodied in a material object form which the work can be perceived ,
reproduced or otherwise communicated.
Respondent Varsity brands. Inc have more than 200 copyright registrations for
two-dimensional designs-consisting of various lines, chevrons and colorful
shapes-appearing on the surface of the cheerleading uniforms that they design,
make and sell.
They sued petitioner Star Athletica,L.L.C ( Star Athletica) who
also markets cheerleading uniforms for copyright infringement. The district
court granted Star Athletica Summary Judgment, holding that the designs could
not be conceptually or physically separated from the uniforms and were therefore
eligible for copyright protection. In reversing the sixth circuit concluded that
the graphics could be identified Separately and were Capable
of existing independently of the uniforms.
Issue: Are the graphics Copyrightable?
The court held that the United States Court of appeals for the sixth circuit did
not err when it found that graphics that were used by a company that
manufactures cheerleading uniforms were copyrightable. Because they could be
identified separately and were capable of existing independently of uniforms the
The court also found that the features incorporated into
the design of a useful article were eligible for copyright protection, if they
could be perceived as two-or -three dimensional works of art separate from the
useful article and qualified as a protectable pictorial, graphic, or sculptural
work-either on their own or fixed in some other tangible medium of expression,
if they were imagined separately from the useful article into which they were
Case study 3:
L'oreal v Shiseido:
Legal Issue: Non -compete contracts
Facts: Beauty companies are often fighting for the same customers, but they
apparently find themselves fighting for the same high -level employees as well.
That was the case earlier this fall, when L'oreal sued Shiseido, to keep a
former senior Vice President from starting work at the Japanese Brand before the
full period of his non-compete agreement had run out.
L'oreal argued that the former executive's knowledge if its business threatened
a planned custom foundation rollout and a court quickly halted the executive's
work at shiseido. The case has since been settled out of court, but the
executive does not appear to have formerly started his position at Shiseido.
Higher -level employees position at Shiseido. Higher-level employees working in
fashion and beauty should take note that Courts tend to view reasonable
non-competes, which are becoming more and more common, with clear terns as
simple contracts worthy of enforcement.
Case Study 4:
Puma and Gucci/Adidas v Forever 21:
Legal Issue: Design Copying
Facts: Lawyers for forever 21 have been keeping busy this year. First, Adidas
accused the fast-fashion chain of copying its trademarked three-stripe design on
a range of goods, then Kering-operated Puma launched a battle over what it
argued were clear knockoffs of popular shoe designs by Rihanna for her fenty
line. Undeterred, forever 21 then took a Pre-emptive strike at Gucci, which had
allegedly sent it cease- and - desists letters regarding striped apparel it
claimed was a rip off of its classic and trademarked grosgrain two-tone stripe details.
The luxury brand hit back with claims of infringement, arguing forever
21's blatant exploitation of its designs could not continue. Adidas and Puma's
arguments were also along those lines, but all of the cases are ongoing. With
forever 21 generally defending itself as manufacturing popular, but unprotectable , designs.
Sweeping rulings on design and trademark infringement in fashion are scarce, and
judges tend to be tasked first with deciding if a given design is even worthy of
protection, and then move onto culpability. Should a judge find forever 21 took
another brands ideas and used them for its own gain, it would at least dampen
its proclivity for copycat designs and signal to others like it that courts are
taking a serious look at litigation over designs. The amount of litigation
alleging design copies could also increase exponentially.
Case study 5
Sales Associates v Forever 21 and Gucci and Sterling jewelers and Wal-Mart:
Legal Issue: Worker harassment, Discrimination , negligence
Facts : There has been a string of worker lawsuits against some of the biggest
and well-known retailers and brands this year, and none look to be headed for
resolution anytime soon. Forever 21 is being accused of allowing a hidden camera
to be installed inside an employee bathroom, which was discovered only because
footage of one former saleswoman ended up online. A former Gucci Saleswoman
claims she was regularly subjected to sexual taunts and alarming encounters with
her store manager with no recourse.
Sterling jewelers hired its first female ceo in the wake of years -long
arbitration turning up dozens of accounts of harassment by male executives and
managers. And Wal-Mart stores Inc, is again being accused of systematically
paying and promoting women in its stores less than men.
Retail, which employs some 4.6 million people in the U.S , where a majority of
dales associates are women, could also be due for something of a reckoning.
Lawsuits are often the first signal to lawmakers and sometimes companies that
issues are systemic and require broader action.If any of the above lawsuits
resulted in a win for a plaintiff, retailers would at least be on notice that
ensuring the safety and rights of their workers should be very high on any list
of business priorities.
Fashion industry is the ever growing and evolving industry which is most likely
would never go down. And thus, for fair play to persists in this
industry,stricter laws are required.The threat that is copying and
counterfeiting results not only in monetary losses but also demotivates the
designers to create something new and innovative. Piracy kills creation and
thus, eradicating piracy is of foremost importance. Thus, these case studies
reveals the importance of intellectual Property law in Fashion industry and
their impact in this globalized era.
- adidas v Skechers: was a preliminary injunction proper? United States -KnobbeMartens
,World Trademark Review
- 137 S.ct.1002(2017).
- Harvard Law Review, 131 Harv.L.Rev.363.