Put a Patent on That Pleat
When shoe designer Stuart Weitzman saw a pair of $45.99 buckled flats on jcpenney.com (JCP) that looked remarkably similar to one of his own $215 creations, he did what more and more designers are doing: He sued.
In January, Weitzman, whose elegant footwear is worn by the likes of Angelina Jolie and Ivanka Trump, filed a complaint alleging patent infringement in New York federal district court. That's right, the designer had registered a patent for the shoe's buckle and ornamentation. Weitzman offered to settle if Penney would destroy the shoes or sell those it had and give him half of the money. "We're making an original fashion product, a timely product," says Weitzman. "It doesn't rot that quickly, but if it's knocked off, customers stop buying ours." (Penney officials declined to comment on the case, which, as of Mar. 19, had not been settled.) Last year, Weitzman sued Sears (SHLD) over another design, and the retailer agreed to remove the shoes from its Kmart stores.
Weitzman and other top designers such as Diane von Furstenberg have watched the knockoff industry bring couture trends to the masses faster than ever. Los Angeles-based Forever 21, a so-called fast-fashion chain with more than 400 stores in North America, Asia, and the Middle East, has built its whole business around copying designs. And ABS, a mass-market label, is known for quickie interpretations of the gowns worn by celebrities at the Academy Awards ceremony each year; they're sold at department stores such as Lord & Taylor and Dillard's. Some upscale chains such as Nordstrom and Bloomingdale's carry the real labels as well as the cheaper versions.
These days, as even well-to-do shoppers are showing some restraint when it comes to luxury purchases, designers are worried that they'll end up as fashion victims. So they are pushing Congress to help protect their work, trying to outsmart the pirates by making their clothes harder to copy, and, when they can, suing. "We're at the breaking point," says Steven Kolb, executive director of the Council of Fashion Designers of America (CFDA), which is leading the lobbying effort. "We're not going to take it anymore."
Designers have been trying to win broad legal protection for years. Although books, movies, architecture, and even software code are protected under copyright law as original art, clothing designs are not. So while a dress may look exactly like a Marc Jacobs original, retailers can slap a different label on it and sell it with legal impunity. (Counterfeit garments, by contrast, pretend to be the real thing—right down to the label—and are illegal.)
The only way designers can take on the pirates in court is to file for patents, or get copyright protection for aspects of their work that legally can be considered art. Von Furstenberg, whose wrap dresses have been knocked off by various big retailers, is among those who have begun copyrighting fabric patterns. In January she sued Target (TGT) for allegedly copying her "spotted frog" print. Target, known for its cheap-chic designs, stopped selling the dresses. Company spokesman Joshua Thomas says: "It always has been and continues to be the policy of Target to respect the intellectual-property rights of others. We are working with our vendor on this issue and hope it can be resolved."
This piece-by-piece approach has its limits, though. That's why designers have been showing up in Washington to back a proposed Design Piracy Prohibition Act. The bill offers legal protection for as long as three years and covers the entire design, not just aspects of clothing such as fabric patterns. It would impose fines of up to $250,000 or $5 per copy, whichever is higher, on those deemed to have stolen an original design. Von Furstenberg, who is president of the CFDA, says the bill "will encourage more manufacturers to hire designers, increasing the availability of affordable fashion at every price point." But in mid-March, the American Apparel & Footwear Assn., which represents stores and garment makers, came out against the proposal, and now it is stalled on Capitol Hill. Kevin M. Burke, the head of the group, says a piracy law would cause "a litigation nightmare."
Meanwhile, some labels are trying to outmaneuver the pirates. Copycat designs often show up in stores within weeks of a fashion show, while the authentic clothes don't arrive for months. Halston, which is owned by movie mogul Harvey Weinstein, is one of those pushing to make its catwalk fashions available right away, on the online retail site Net-a-Porter.com, in hopes that shoppers will choose immediate gratification over price savings.
Weitzman and others are making some of their couture designs a little more haute so pirates can't rip them off at all. For his spring collection, Weitzman created unusually shaped heels for a $299 shoe called the Bowden-Wedge. He is also experimenting with materials such as titanium and steel, which he says are too expensive for the knockoff artists. If they try something cheaper, like painted wood, the heels will snap. "I used to make whimsical and outrageous shoes for display only," Weitzman says. "For the first time, they're becoming part of sellable footwear."