Fast fashion plays fast and loose with IP rights
AI and fashion: Fashion Law London
The luxury of fashion law
A fashion retailer’s ability to turn catwalk designs into cheap bestsellers is said to cause harm to people, the environment, and the fashion industry itself. Saman Javed looks at some of the latest steps to address this.
Much of the fashion industry relies on cheap, mass-produced clothes. A never-ending conveyor belt of trends is feeding and driving consumer appetites for new items and, as production processes speed up, the result is “fast fashion”—an aspect of the industry that is alleged to carry with it many environmental and human costs.
In February 2019, members of Britain’s parliament urged its government to force fast fashion retailers to make stronger efforts in tackling some of the issues surrounding their industry, such as poor labor conditions, environmental damage, and excessive waste.
“Fixing fashion: clothing consumption and sustainability,” a report published by the parliament’s Environmental Audit Committee, stated that the UK’s biggest retailers have “chased the cheap needle around the planet,” commissioning production in countries with low pay, little trade union representation, and weak environmental protection. The report also raised concerns over the “use of child labor, prison labor, forced labor, and bonded labor” in factories.
“Fast fashion’s overproduction and overconsumption of clothing is based on the globalization of indifference towards these manual workers,” the report said.
More recently, in September, the All-Party Parliamentary Group for Ethics and Sustainability in Fashion called on the British government to address fast fashion issues and other industry woes. In a report titled “Making the UK a Global Leader in Sustainable Fashion,” the Members of Parliament urged, in part, an investment in research and development to produce more sustainable fabrics, boost clothing recycling, and return clothing manufacturing jobs to the UK.
The fact the reports were produced in the UK reflects the country’s status as Europe’s biggest purchaser of clothes, per person. It was also testament to the growing concern among consumers. There has been a strong shift in consumer focus to the damaging impact of fast fashion, but it has not dented the ever-increasing growth of fast fashion brands.
Boohoo Group, which owns the Boohoo, Coast, and Karen Millen labels, reported that revenue at its fast fashion brand PrettyLittleThing had increased by 38 percent this year, to GBP 516.3 million (US $686 million).
The UK’s Environmental Audit Committee report linked Boohoo’s buying practices with “illegally low wages in Leicester’s (UK) garment factories.”
In response to the report’s findings and quoted in the report, the online retailer said that it lawfully produces affordable garments, defending its GBP 5 (US $6.53) dresses as a “marketing tool to attract customers to visit our website.” Further, it said, “these loss-leading garments make up only 80 out of over 6,700 dress styles on the Boohoo website.”
“It’s an approach that has proved extremely profitable but gives very little regard to the huge cost to our planet’s finite resources.” - August Bard-Bringéus, ASKET
August Bard-Bringéus, Co-Founder of fashion label ASKET (Sweden), which highlights its ethical and eco-friendly production processes as a unique selling point, pinpoints an underlying problem that may be feeding fast fashion.
“The fashion industry is built on a model of constant renewal,” he said.
“In order to continue turning a profit, the industry develops new trends and produces more garments on a cyclical basis, thus encouraging consumers to update their wardrobes.”
He continued: “The trouble with fast fashion in particular is that it has taken this model and supercharged it—by increasing the rate of production, with new collections every week and at the same time pushing down prices.”
Fast fashion is churning out “an ocean of clothing,” Mr. Bard-Bringéus said, which is sold at such low prices that garments have come to be seen as disposable. This has now become part of brands’ marketing techniques.
“It’s an approach that has proved extremely profitable but gives very little regard to the huge cost to our planet’s finite resources, the environmental impact, and the exploitation of poorly paid human labor,” he added.
In contrast, speaking of ASKET’s business model, he said, “Our definition of progress is reduced wardrobes, and we see our garments as a vehicle to achieving this.”
The brand has done away with seasonal collections—which, he says, only “fuel fast consumption habits”—replacing them with what Mr. Bard-Bringéus described as a “permanent collection of timeless, quality clothes” which are sold at a price that reflects the resources and labor involved.
“Ultimately, our goal is to show that there is economy in slowing down. For both industry and consumers, it pays to own a five-year T-shirt, rather than 10 T-shirts that last only five washes,” Mr. Bard-Bringéus explained.
“It’s a simple notion but the act of extending a garment’s life helps to slow down consumption, reduces waste, and, in turn, lowers fashion’s environmental impact,” Mr. Bard-Bringéus said.
“Now that it is easier to manufacture clothing products, you can order counterfeit goods from a shop.” - Son Doan, IPMAX Law Firm
Another big issue is linked to fast fashion: counterfeits.
Son Doan, Managing Partner at IPMAX Law Firm (Vietnam), said international consumer preference, coupled with fast fashion production processes, is driving the proliferation of counterfeits. In addition, fast fashion production processes have given rise to a new form of shopping.
“We have started to see online platforms which give the consumer the option of selecting a brand and a design, and then using 3D printing technology to essentially create a product,” according to Mr. Doan.
“The operators use the brands’ trademarks and give the customer flexibility to use them as they wish. They then have it produced in Vietnam, or in another country to be shipped back to Vietnam,” he explained.
This concept of shopping has also reached physical marketplaces.
“Now that it is easier to manufacture clothing products, you can order counterfeit goods from a shop,” he said.
Mr. Doan said these manufacturers can provide a high volume of goods in a shorter timeframe.
“It has become easier to source materials, and that availability makes the supply chain move faster. You can make an order and within a week they can supply 500 to 1,000 units,” he said.
Another supply chain-related problem which has come to light in recent years is the issue of traceability, i.e., a consumer has no idea where a piece of clothing comes from, or about the ethical and environmental damage caused by the product’s production.
“Fashion supply chains are among the most complex in the world,” Mr. Bard-Bringéus said, noting, “Every garment passes through numerous specialized facilities scattered across the globe, each run by different companies.”
In his view, the fact that fashion brands have developed immensely complex and fragmented supply chains has in part made it easier for brands to shrug off any responsibility.
This is because brands themselves tend to deal only with the first-tier supplier—the factory which cuts and sews together the final piece. ASKET’s research shows that only 7 percent of brands know where their raw materials are sourced.
To counter this, in 2018, ASKET introduced a “Full Traceability Standard” to its brand, whereby it sets out to identify every location its garments pass through in the supply chain. It shares everything it knows—and doesn’t know—on its product labels and on its website.
With this approach, Mr. Bard-Bringéus explained, “We want not only to raise awareness of the value of clothing among consumers but also to push ourselves and the whole industry towards new levels of accountability within the supply chain.”
“Consumers know they aren’t buying the luxury brands, but they want to follow the trends, so they buy something which looks like the luxury brands.” - Alan Chiu, ELLALAN
Fast fashion propagates an IP issue: the thirst for, and reliance on, protected designs seen on the catwalk, in stores, or online, copies of which appear for sale just days, or even hours, later.
Alan Chiu, Managing Partner at law firm ELLALAN (Hong Kong SAR, China), said social media have added to the proliferation of imitation designs.
“They are the fastest channels for communicating photographs and product information. Additionally, many social media platforms have become semi e-commerce platforms. Brands can upload videos of models, or influencers, unboxing and wearing the products,” he said.
While high-end brands prolifically use social media to market their products, it has also become easier for fast fashion companies to market their imitation designs on the same platforms and at a fraction of the price.
“Consumers know they aren’t buying the luxury brands, but they want to follow the trends, so they buy something which looks like the luxury brands,” said Mr. Chiu.
On one hand, Mr. Chiu said, imitation products make fashion trends more accessible to the general public, whereas they may previously have been bought by only a small proportion of the public.
“On the other hand, that enables many of the smaller manufacturers to become copycats, particularly in China where copyright protection is not really fully fledged. This only encourages copycats, as they can copy designs without fear of litigation,” he suggested.
“By the time you take action, they have sold everything and moved on to the next thing. From an economic perspective, it’s often not worth a claim.” - Rosie Burbidge, Gunnercooke
For luxury brands, taking action against fast fashion brands can be difficult.
Rosie Burbidge, a Partner at Gunnercooke (UK), said that although brands are trying to counter infringement, the fast turnover of trends and fast fashion brands’ limited production of each on-trend item limits their ability to do so.
“By the time you take action, they have sold everything and moved on to the next thing,” Ms. Burbidge said. “From an economic perspective, it’s often not worth a claim.”
In Hong Kong, imitation designs can be litigated through a claim of copyright infringement. This is because copyright law protects every product design, down to the underlying design drawing. Brand owners can also register their designs to obtain an additional level of protection.
According to Mr. Chiu, “Sometimes, depending on how the imitation product is advertised for sale, the imitator may be liable for passing off as well. This normally happens when the products are advertised in a manner that creates a high likelihood of confusion for the customer, leading them to believe they may be buying from the actual designer brand.”
In China, the law is a little different.
“In China, due to historical reasons, the courts generally use copyright only to protect designs with artistic merit, and copyright is less applicable to designs without artistic merit. This makes the hurdle a bit higher for brand owners to succeed on the ground of copyright infringement,” Mr. Chiu explained.
“While some fashion items meet this criterion, not all high-end products are ‘artistic,’” he said. For example, generic T-shirt designs which don’t have complicated patterns may fall below the “artistic” standard of copyright law, he noted.
For this reason, brand owners in China need design patents to avoid enforcement problems.
“For now, luxury brand owners in China have changed their strategy,” he said. “Although copyright law in China has its hurdles, brands protect their products by design patents and copyright in parallel—on one hand for more comprehensive protection, and on the other hand to facilitate proof of copyright.”
By having design patent registration, Mr. Chiu said, they can more likely persuade infringing manufacturers that their IP is easily enforceable.
INTA 2020, fashion, designs, Boohoo, online retailer, consumer behaviour, supply chains, 3D printing, technology, brands, trademarks, patents, copyright
Fast fashion plays fast and loose with IP rights
AI and fashion: Fashion Law London
The luxury of fashion law