Fighting knock-offs in the fashion industry is notoriously difficult. Copyright, trademark, and trade dress laws offer some protection for branding and marketing materials used to sell fashion products, as well as for expressive images or designs applied to clothing. But the fashion designs themselves often fall through the cracks. The recent lawsuits filed by Brandy Melville against Temu and Shein highlight a rare case where enforcement may succeed, not because of the designs alone (which, if the allegations are true, were copied) but because of how the products were marketed.
Generally, clothing designs do not enjoy strong copyright protection. Basic shapes, patterns, and functional features are considered useful articles and are not protected unless they contain separable, original expression, such as an artistic applique or fabric print. Trademarks can protect logos or other distinctive identifiers, but only if the knock-off uses those marks or something confusingly similar. Trade dress may protect the overall look and feel of a product, but only if it is both distinctive and non-functional, a standard that is difficult to meet in fashion.
This means that when a fast-fashion brand produces a dress that closely resembles one seen on the runway, the original designer often has little recourse. The law generally tolerates design imitation, especially when reflecting current trends. Fashion moves fast, and the line between inspiration and infringement is often hard to draw.
What makes the Brandy Melville cases different is that they involve more than copied designs. According to the complaints, the accused retailers directly used Brandy Melville’s promotional photographs and website content to sell knock-offs. This goes beyond imitation into textbook copyright and potentially trademark infringement. A company may not use someone else’s copyrighted images to advertise its own products and claim trend-following as a defense. And if the use of those materials implies that the seller is affiliated with or endorsed by the rights holder, it also violates trademark law.
The lawsuits allege that Temu and Shein used Brandy Melville’s photos with little or no modification (e.g., sometimes merely changing the color of a garment). Unauthorized copying and distribution of protected content is clear infringement. And if consumers are led to believe they are buying authentic Brandy Melville goods, trademark claims for false designation of origin and unfair competition become viable as well.
This kind of conduct, if proven up, provides courts with a strong basis on which to grant relief. Most knock-off cases falter because the copied elements are not clearly protected. Brandy Melville, by contrast, is focusing on clearly protectable property and has screenshots and side-by-side comparisons that tell a compelling story.
Brandy Melville's current lawsuits may succeed where others fail, not because the designs are better protected, but because the copying went beyond imitation of the fashion trend, to direct copying of protectable content and trademarks. In fashion, enforcement usually requires more than catching an opportunist riding your wave. You have to catch a thief in the act.
Brandy Melville may succeed where others fail, not because its designs are better protected, but because the copying extended to protected content and trademarks. In fashion, the fact that an opportunist is riding your wave is rarely enough. You have to catch a fashion thief in the act.
The suit includes claims for copyright infringement, false designation of origin and unfair competition.
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