Curtailing Copycat Couture: The Merits of the Innovative Design Protection and Piracy Prevention Act and a Licensing Scheme for the Fashion Industry

By Aya Eguchi*

*B.S.E., Duke University, Pratt School of Engineering, 2005; J.D. Candidate, Cornell Law School, 2012; Editor, Cornell Law Review, Volume 97.

Excerpt from Curtailing Copycat Couture: The Merits of the Innovative Design Protection and Piracy Prevention Act and a Licensing Scheme for the Fashion Industry, 97 Cornell L. Rev. 131 (November, 2011)

Introduction

Forever 21, a "cheap-chic" fashion retailer that sells trendy clothing at affordable prices, currently operates more than 450 stores in nearly twenty countries, 1 including a four-level, 90,000-square-foot building equipped with 151 fitting rooms in New York City's Times Square. 2 Started in 1984 as a husband-and-wife operation in a low-rent area of Los Angeles, the company reached $ 1 billion in revenues in 2006, catapulting itself into the ranks of the top 500 privately held companies in the United States. 3 The interesting twist in Forever 21's success story, however, is that this fashion megaretailer has no design team of its own. 4 Instead, it functions through "savvy designer merchants" who attend runway shows and take note of the latest "runway hits" that they can duplicate. 5 These duplicated designs then arrive on Forever 21's shelves in weeks, sometimes even before the originals hit their own markets. Not only do these designs appear in market-shattering time, but they are often direct copies of the originals - identical in color and pattern and even in fabric type and garment measurements. 6

While some designers have brought lawsuits against Forever 21, 7 this copying of couture fashion has left most designers with few legal remedies. This is because U.S. intellectual property (IP) law, while protecting the logos and brand names of fashion houses as well as the fabric prints used on garments, currently does not provide protection for the actual fashion design itself. 8 As a result, it is usually ...

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