Fast fashion plays fast and loose with IP rights

Shein is a leading fashion e-commerce site that dominates the ultra-fast fashion market, competing with brands such as Boohoo, Missguided and Fashion Nova. The market has seen enormous growth during the COVID-19 pandemic, particularly in Europe, the US and the Middle East.

A key feature of these operators is that they provide thousands of new fashion lines each month, all sold cheaply, and use data analytics to identify product lines that reflect the demands of the local market, predicting the most popular styles, colours and fabrics.

Shein uses its in-house team to design and create prototype products, made ready for production within days by hundreds of factories with whom they work.

Most product lines are in women’s fashion but there are significant markets in fashion accessories, homewares, gadgets and pet products. These items are then promoted via social media platforms and digitally marketed on Instagram, TikTok and YouTube, among others, via influencers and fashion bloggers. This allows users to rate and review the products, share photos, and tag items.

In June, AirWair International, the owner of Dr Martens, sued Shein in California for copyright infringement. The case concerned boots sold on Shein’s website that were labelled the “Marten Boot” and, Airwair claims, were direct copies of genuine Dr Martens footwear using Airwair’s own photographs. Shein has denied the claims.

However, news of a claim is not that surprising and is the latest in several public disputes, including from independent earring brand Kikay and clothing brand Valfré, as well as more established brands like Levi Strauss.

The challenge for rights owners

The ultra-fast fashion business model puts revenue and growth first, with less focus given to issues around third-party IP rights. Shein says that they treat IP infringement seriously and have a “ deep respect” for artists and designers. Once they become aware of infringements, Shein and most other fast fashion platforms address the complaints from rights owners promptly. They may not actively engage with rights owners in that process but it is usually straightforward to request removal of infringing goods from the various websites and platforms using their well-documented take-down procedures.

The problem for rights owners is ensuring that they are aware of infringements so that they can take prompt action before a large volume of infringing goods enters the market. Rights owners also need the time and patience to notify and chase the websites and platforms to ensure that appropriate action is taken.

However, for smaller independent fashion brands, ultra-fast fashion retailers are particularly frustrating to deal with because they repeatedly advertise and manufacture infringing goods, and only take down the goods once a complaint is made.

It simply isn’t possible for the ultra-fast fashion providers to carry out enough due diligence to ensure that their products do not infringe the rights of others: the business model that allows them to create designs based on the data-driven predictions through social media marketing deliberately removes the “human” element that either allows genuinely creative designs to be manufactured or filter out the products that are copies of, rather than inspired by, existing designs.

The business model that provides high volumes of new products at the lowest price also explains other difficulties encountered by the sector, particularly around the environment, product quality and worker conditions.

The importance of acting early

More experienced rights owners will be aware that dealing with take-down procedures becomes quicker and easier over time and that taking early action can send a message to retailers that infringements will be pursued.

A “zero tolerance” policy can eventually discourage retailers from taking risks over infringing the rights of certain brands whose takedown requests and threatened lawsuits will ultimately cost them more time and money than they are willing to tolerate.

Of course, this is a plausible approach for heavyweight rights owners such as Airwair or Levi’s. However, the indie designers, often favoured by the fast-fashion retailers, will find this more challenging.

A practical way forward

Thankfully, whatever the size of their operation, rights owners who undertake a number of preparations before online infringement challenges arise can put themselves in the best position to take quick action: