The protection of designs in the fashion industry continues to be an unresolved problem. Much of the current litigation in the clothing sector deals with infraction of industrial design due to the increase in “knockoffs” of designers’ creations. In the fashion industry there is still discrepancy about whether knockoffs are authentic copies of the original designs or if they are simply inspirations.
Currently, ZARA has gotten itself into litigation again for plagiary by letting itself be “inspired” by the Ukrainian Brand Ksenia Schnaider. Zara included in its new Zara Kids collection sweatshirts with “sample not for sale” written on them which was previously invented by the designers and presented in their 2017 spring-summer collection.
ZARA is not the first in attempting to copy the design of this imprint. The designer Schnaider commented in the Calvert Journal that they know that in China fake t-shirts with the slogan are sold and that many people on Instagram use the hashtag with her brand in their photos wearing these fake t-shirts.
The difficulty in this litigation will be that the slogan “sample not for sale” is not really new. For an industrial design to be registered and in that way be protected, it must be new and unique. Brands have been sticking labels with this phrase inside their sample garments mainly for a utilitarian purpose for years. That said, Ksenia Schnaider was the first to put this phrase outside the designer label on t-shirts and jean jackets. It must be seen whether the average consumer associates the slogan “sample not for sale” with the brand Ksenia Schnaider.
Under Spanish law, fashion creations are protected through registered and unregistered industrial design, copyright and unfair competition.
Registered protection of an industrial design grants its holder the exclusive right to use it and prevent its use by third parties without consent for five years, extendible up to a maximum of 25 years. This is protection for the external form of products that implies aesthetic innovation. The protection of the registered industrial design is governed in Law 20/2003, of 7 July, on legal protection of industrial design.
Unregistered design is protected throughout the European Union by way of European Regulation 6/2002 of December of 2001, on community drawings and models. Protection of an unregistered design is granted when it is new and unique. The term of protection for an unregistered design is three years after the drawing is made public for the first time within the European Union.
In accordance with the European Regulation, the unregistered design grants its owner the right to prevent acts of use and storage of the product, if the use challenged is the result of having copied the protected drawing or model.
Furthermore, pursuant to the Regulation, a design shall not be considered a copy when it is an independent creation made by an author about whom it can reasonably be thought that he/she did not know of the drawing or model disclosed by the holder. Nevertheless, it is not necessary that the copy be identical, a design that does not produce a different general impression on the informed user shall be sufficient.