Fashion is all about not standing out from the rest. It is really great being the first one to wear a dress or another piece of clothing everybody wants and you sort of create fashion. However, problems arise when you do not use the original product but copy it. Or do they?
Recently, Copenhagen Fashion Week took place and this event always claims a lot of attention. But it also revives the debate about the borderline between copying and being inspired by something. The topic is not new. The Danish newspaper Politiken recently published an article about red shoe soles being popular in the year 1600. Red shoe soles were worn by the aristocracy and people started to paint their soles red. For instance, today a red sole on a spike heel is a trademark owned by the French designer Christian Louboutin. But is it okay to get inspired or to copy such a product?
Well, let’s take a look at the legislation. According to this, it is legal to get inspired but it is not legal to copy someone else’s product. The borderline between getting inspired and copying is the interesting area. There is no exact boundary between what is legal and what is not. The specific legislation does, however, help us and for example regarding trademarks you do also have protection for similar trademarks. But then again, when is one trademark similar to another? Each time we have to evaluate this, we make a specific comparison where a number of different things are compared and evaluated.
But that is the nature of trademarks. What about fashion, where the whole idea is to wear the same as everybody else, until someone dictates a new line? Still, it is not legal to copy someone else’s products. If you wish to wear this, you must buy it. That is the credit, the designers get. However, if you are inspired by a product and then create a brand new product not similar to the original product, this product will have its own scope of protection. The essential thing is not to get too close to someone else’s product. Depending on the products in question, the freedom of designing is different. When it comes to clothing, the products must fit the human body. Basic blouses and trousers may be difficult or impossible to protect the design for, however, if you copy a trademark, you may get in trouble. Does the basic product, however, have some unique details, these must not be copied and you should avoid getting too close to these. It may for example be unique stitches on a pocket. If you wish a stitch, you must create your own, different to the stitches already existing. And the more stitches, the more difficult this also is and the narrower the scope of protection is for the stitches that already exists. This may also be worth considering when creating new products.
So fashion is also in a legal way about getting close but not too close. Every woman knows that showing up in the same dress as another woman at the same party, is not a pleasure, no matter how beautiful the dress is. Let us learn from this that unique is the best.
Henriette Vængesgaard Rasch, Attorney at Law