The Authors' Take - Private Copying of Fashion Designs – Should Fashion Houses Intervene or See it as an Opportunity?

Private Copying of Fashion Designs – 

Should Fashion Houses Intervene or See it as an Opportunity?

by Heidi Härkönen

Knock-offs are not always produced by cheap fast-fashion companies or shady counterfeit businesses. Anyone who follows sewing-themed social media knows how common it is for amateur seamstresses to create skilfully-made knocks-offs of well-known fashion designs. Especially children’s fashion seems to be the target of copycats, and the most-copied brands mainly produce clothes for children. The reasons for private copying are not only financial but also related to needs of altering or personalizing the product somehow.

Private copying of fashion designs has existed throughout the modern fashion industry. However, in the 21^st century, images of these copies can easily spread to wide populations and gain fame, which has potential effects on the brand image of the copied fashion house. Thus, should fashion houses intervene and can they even intervene in this kind of activity?

When it comes to copyright protection, amateur seamstresses will likely be able to rely on the InfoSoc Directive’s private copying exception in most Member States. Design right and trademark protection will often be equally ineffective, since most home-sewers will not make copies for commercial purposes or use a trademarked sign in the course of trade.

Legally, the problem of home-sewn copies is rather simple. Fashion houses as intellectual property right holders have very little that they can do to prevent people from home-sewing copies of their fashion designs, since without any commercial purpose it will often fall outside of the scope of exclusive rights.

However, instead of ignoring the phenomenon of home-sewn copies, fashion houses could utilise the copying habits of sewing amateurs and make profit out of them. Providing sewing patterns or “DIY-packages” of bestseller products for private copying could benefit both the brand and the person whose intention it is to make a private copy of the product in question. This way the brands could engage new customer groups. Especially brands that manufacture children’s fashion could see this as an opportunity, since children’s fashion seems to be the most copied segment by sewing hobbyists.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). An extended version of the present contribution will be included in our Fashion Law Special Issue, due for release as Issue 11/2018, and published with the following title: 'THE NEW ERA OF HOME-MADE FAKE FASHION - The phenomenon of home-sewn copies and the possibilities for fashion houses to take advantage of it.']