Hairuo Zhang 铜表律师事务所
Fashion designs are difficult to protect. Usually, aspects of product design do not qualify for protection under copyright law or trademark law, while design patents are difficult and expensive to obtain.
Even if copyright protection is available, it could be difficult to enforce. When facing an infringer selling knockoffs copying hundreds of original designs of one company, it is time-and-cost-consuming for that company to file hundreds of separate copyright infringement lawsuits against that infringer.
In a recent court decision rendered by a district in Hangzhou city, China, a clothing provider selling Only / Vero Moda’s original designs on Taobao under a cheaper brand was found unfair competition and was ordered to cease infringement, pay over 2 million RMB as damages and make public apology (court docket no. 2020 ZHE0110 MINCHU 11687). Below is the summary of the case.
A fashion company which provides famous “ONLY” and "VEROMODA" branded clothing for women and has lots of products with unique design and distinctive fashion style. It has an online flagship store on Tmall and opened over 6,000 physical retail stores in China. Its sales volume ranked top 10 nationwide during “Double 11 Shopping Festival" on T-mall for many years.
An online store on Taobao which has sold large volume of clothing copying 75 different clothing designs of ONLY and VERO MODA under its own trademark at much cheaper prices. Some consumers commented that the designs of the clothing they bought from the defendant were identical to those of ONLY and VERO MODA’s authentic products.
The court reasoned that the designers have given their time and sweat in designing work. The novel clothing design or collection of products which could show the designers’ unique identities can attract more attention from consumers, hence bring with competitive advantages to those designers.
The defendant did not invest in any intellectual effort on designing, choices of raw material, workmanships etc., but profited off plaintiff’s clothing designs. Its act has stolen trading opportunities from the plaintiff, violated the honest and good faith principle as well as commercial morality. Therefore, such act has disrupted the market order, harmed the plaintiff"s legal interests and amount to unfair competition.
Besides injunction order, the court also awarded punitive damages against the defendant due to its clear bad faith in replicating ONLY and VERO MODA’s various clothing design in large scale.
Respecting and protecting the intellectual property of the fashion design pushes the entire industry forward with inventive creations. Fashion designs are still difficult to protect under intellectual property law. However, the above case provides another avenue under Anti-Unfair Competition Law to enforce designers’ right. It is likely that more designers will pursue legalaction against to halt knock-offs after this case.