Monday, February 22, 2010

Legally Speaking

If a tree falls in the forest, and no one is around to hear it, does it make a sound? The question in much of fashion litigation is essentially the same thing. Because trade dress and copyright infringement in the industry are nearly impossible to prove, is there any violation when one designer knocks off another?

I'm sure I need not repeat myself when it comes to my own view on the issue (or re-post the picture of the 'I know your bag is fake' t-shirt my college friends gave me for my bridal shower), but the question lingers nonetheless. It is admittedly an impossible task to prove that one's goods are legally infringing another's designs when the grounds are trade dress (overall 'packaging' of the product) or copyright (exact replication of the product, not a mere 'interpretation'). Even if we can all look at a Forever21 dress and immediately see the Anna Sui that it directly imitates, that's only the tip of the proverbial iceberg (and even if the insurmountable task of proving such a case made it to trial and to the damages stage, there would be an entirely separate battle of proving profits on the impostor, and then disgorging said sums. There's a reason lawyers drink.)

The same principals that prevent children from grabbing candy in the store and running out with it should keep the greedy at bay when it comes to designer digs. It's just not fair. Unfortunately, a lot of brands take the tree-falling-in-the-woods approach and pretend that because its hard to prove, it's not illegal to knock off. If they're not deterred by the moral turpitude of such acts, they should know that people like me are out there curling a lip at the sight of sad, sullen, saturnine versions of the real thing. If you want cheesecake, go to little Italy and have a slice, don't cross the street to Tasti-D-Lite and pretend it satisfies the urge.

Photo credit to Hip Candy


  1. well said counselor

  2. Even more unfortunately, many civil defendants take the "if the tree falls in the forest approach." But it's how we lawyers drum up business!


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