Term Paper: Fashion Knockoffs

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Business

Fashion Knockoffs: Perils and Prevention in a Global Industry

What's in a name? Quite a lot, if it is the name of an author, artist, musician, or inventor. A wide range of artistic creations and commercial products sell much better if they are produced by talented and recognized individuals. Creative minds spend weeks, months, even years, coming up with the ideas and designs for everything from books and movies, to songs, posters, automobiles, and iPods. Often a great deal of money is required to develop these concepts and market them. The originators of these ideas enjoy the exclusive rights to these items, and their genius is protected by a host of copyrights, patents, and trademarks. In the realm of fashion, consumers spend billions each year on original designs for clothing, shoes, eyewear, perfumes, and the like. Highly-skilled designers devote considerable amounts of time and money to the development of these goods. Yet are these designer creations protected in the same fashion as other forms of intellectual property? Fashion designers lose enormous sums of money each year to inexpensive knockoffs - imitation goods sold at cut-rate prices. Nearly every product the high-end designer produces is re-produced by some competing manufacturer. Though attempts have been made to stop the process, current laws are woefully inadequate. Whether from major consumer outfits or barely legal back alley vendors, upscale fashion designers must fight a never-ending battle against those who rob them of the legitimate fruits of their own imaginations.

The Origin of the Knockoff

The counterfeiting of fashion items such as clothing, shoes, and handbags was rare until the popular introduction of the designer label in the 1950s. As fashion houses, such as Louis Vuitton, began to use their names as a an element of design on the actual product produced, consumers from all walks of life, and all income levels, began to associate designer names with high-quality fashions.

The social revolution of the 1970s, however; expanded the possibilities of counterfeiting from an original luxury domain into that of common garments as fashion moved to keep paces with cultural trends. Clothing, like blue jeans that had formerly been associated strictly with the working man and with children, came to be connected to the freedoms of a new era.

The same baby boomers who had worn Levis as young boys and girls, continued to wear those same styles after they had fought the battles of the 1960s. The 1970s saw an explosion of designer jean labels, and a corresponding growth in the financial possibilities of the market. The rebels of the 1960s became the yuppies of the 1970s and 1980s, and, "With respect to the explosion of luxury goods, the yuppie stands front and center. Yuppies were one of the first communities since the Renaissance known almost entirely through their display of goods."

For those unable to afford the true yuppie price tag, knockoffs provided a cheap way of competing with one's peers and remaining fashionable.

Knockoffs: A New Aspect of the Global Economy

As demand for knockoffs grew, clever entrepreneurs found new ways both to make money and to satisfy the demand. Across the globe, millions of men, women, and children in developing nations desperately need jobs that, if not actually paying a living wage, will permit them to at least scrape by. The Third World sweatshop is an ideal place to produce knockoffs of high end merchandise, whether these be designer jeans and dresses, or handbags and perfumes. Most knockoffs come from East Asia, though more and more, designer products may be produced in Turkey, or even Italy.

Many Americans bring knockoffs back with them from trips to Mexico and other locations where such products are openly sold. In 2003, United States Customs and Border Patrol agents seized $94 million worth of goods that were being carried by Americans coming across the Mexican border.

In total an estimated $200 billion in "faux" designer merchandise is sold in the United States every year.

Further enhancing the market, and further confusing the consumer, many legitimate manufacturers produce goods that are similar to, but not identical with the actual designer products, while others are sold under the names of the actual manufacture but with caveat that their authenticity cannot be guaranteed.

These goods can easily be sold out in the open, in department stores, and on internet sites.

Strategies for Manufacturing Counterfeit Products

Manufacturers employ two primary strategies when counterfeiting goods. In the first of these, the goods to be reproduced are purchased legally. The manufacturer simply copies the design directly and sells it in competition with the actual product.

This technique can be used easily enough even in the real product's actual country of manufacture if the knockoff is not an exact reproduction of the original designer good. A case in point would be an imitation dress that looks exactly like the designer original but is produced of cheaper materials. Also, a handbag that is similar in shape to the designer bag, can be sold openly if some minor detail, as say the shape of the handles, is changed somewhat. As well, counterfeiters may obtain the original illegally and smuggle it to a foreign jurisdiction where supervision is lax. This is the source of much faux merchandise coming from countries like China and Taiwan. Indeed, the Chinese Government actively condones a large segment of this counterfeit manufacture, and the "development" activities that go along with it. China conducts a large amount of industrial espionage in connection with other industries, and knockoffs of clothing and other goods are regular exports from the People's Republic.

Fashion Knockoffs and the Law

Unfortunately, the law is relatively lax where counterfeiting of designer fashions is concerned. In contrast to other creations of individuals and corporations, clothing and other apparel designs are not protected by intellectual property laws in anything like the same way. Specifically, clothing is not protected by trademarks, copyrights, or patents because, under the law, it is considered a "useful article."

In other words, being something that everyone uses, it is also something that theoretically could be manufactured by anyone out of necessity. In a sense, designer fashions are still being considered mere variants of some sort of universal necessity. Perhaps this thinking goes back to the days of pattern books and fashion dolls, both of which were sold and distributed for the express purpose of allowing the possessor of the "model" to reproduce the original either exactly or in the form of some minor variant. Again, governments such as those of the People's Republic of China, actively flout international conventions. They buy their apparatus legally on the global market, visit trade shows and so forth, and then use low-paid labor and even prisoners to sell their counterfeited goods at prices that undermine the businesses of legitimate designers.

Proving Infringement

Given the difficulty of preventing the copying of clothing and other high-end fashion designs, it is equally difficult to prove that a design has indeed been pirated. Of course, the situation is easier when there is a clear infringement of the rights of the original designer as in the case of a counterfeited product that bears the name of the actual designer but was manufactured illegally. Fake Louis Vuitton bags that actually bear the Louis Vuitton name can of course hopefully be tracked back to their points of origin. The real problem comes when a design is clearly copied but is not sold under the name of the original designer. It has been suggested that designers avoid these problems by employing technologies that will definitely identify their work as their own. Nano-textiles for example, are minute magnetic particles that can be inserted into a fabric and detected only by special equipment.

Nano-textiles would, in effect, represent a "signed" original that could only be counterfeited with great difficulty. Principally, short of dramatically changing the laws regarding intellectual property rights to fashion designs, a similar garment, shoe, handbag, etc. must be equipped with something that can actually be trademarked, patented, or copyrighted in order for its authenticity to be proved or disproved.

Possible Adaptations to Laws for Proving Infringement

Necessarily, in the instance of two designers producing an extremely similar good, such as a shoe produced by Alexander McQueen, or one produced by Aldo, there must be some way f proving who came out first with the original design. According to the Fashion Institute of Technology, American fashion design is first and foremost about marketing, not design per se. Stated a New York-based designer,

American fashion, the way it's taught, is all about merchandising. It starts from the concept of merchanding. It does not start from an idea. European schools are more about the idea... here, it's about business, and it's all very worked out, the [fashion] seasons, the weight of the fabric, the price points. And my interns here, the way they teach them, they know all this stuff. I was never taught it in school.

If contesting the originality of a product design in the United States,… [END OF PREVIEW]

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