|A Tatty Katty ...|
"When jewellery designers Tatty Devine discovered that the Claire’s Accessories high street chain was selling products almost identical to their own, they thought the products were anything but divine. Although taking inspiration from other designs is widely accepted as the norm in the fashion industry, wholesale copying is not. But the difficulty of successfully pursuing a copyright or design right claim through the courts means that fashion designers rarely bring such claims.
To rely on copyright or design right in the UK, rights holders must show that copyright or UK design right exists in the first place, with the work being “original” (or, in the case of a Community design right, that the design is “new”); that they own that right and that a substantial part of the work has been reproduced. Fashion designers will fall at the first hurdle if they can’t do this. It’s arguable that nothing is original or new in fashion since the industry is built on re-using trends and taking inspiration from others. That said, the threshold of originality required in the UK is low.
Even if fashion designers can show that their products are original or new and that copying occurred -- which usually requires factual evidence showing how the defendant had access to the underlying work -- a successful claim won’t result in a damages award for a copyright claim or a UK design right claim where the defendant is an “innocent infringer”. Given this burden, it was no surprise that a creative enterprise like Tatty Devine would seek a more creative solution to get copycat products removed from the market.
Taking the view that Claire’s products went beyond “Devine inspiration” and were blatant copies, Tatty Devine designers Rosie Wolfenden and Harriet Vine responded by putting a post on their blog entitled "spot the difference" which compared their products with Claire's. Such was the public backlash that, within 24 hours, Claire’s Accessories was trending on Twitter and was awash with angry complaints that have since been removed from Claire’s Accessories’ website.
Using the power of public opinion rather than the more traditional approach of instructing lawyers to send a cease and desist letter proved quicker in getting the products off the market. It was also cheaper in that it avoided legal fees.
Tatty Devine is not alone in using social network sites to try and force copycat products out of the market. Last month another designer, Michael van der Ham, posted on Twitter a photo of a floral print blazer and trouser set which arrived in Primark and looked suspiciously like a blazer and trouser set produced by Greek designer Mary Katrantzou in her Spring/Summer 2012 collection.
But the use of social network sites to remove copycat products from the market is not risk-free. Social networks by their nature enable social interaction among many users, which means that it’s very easy for any story published on the internet to take on a life of its own. Some of the posts published on Tatty Devine’s blog following their “spot the difference” post included potentially false and defamatory statements against Claire’s Accessories. Tatty Devine has since closed the comments on this post, following legal advice which no doubt warned of the risk of attracting defamation or malicious falsehood claims [The Kat notes that, while Twitter is a law unto itself, comments posted on blogs can be moderated: it's often the juiciest ones that have to be blocked ...].The Kat thanks Tamar for telling his readers about this. He suspects that, given the higher and more sophisticated level of social media use in the United States, the technique used by Tatty Devine here may already be in frequent use -- and that lawyers and social media consultants may already be building up practices based upon it.
Using social network sites to publicise copycat products could also lead to a threats action. While wrongfully threatening to sue someone for copyright infringement doesn’t come within the scope of UK threats legislation, threatening design infringement (whether registered or unregistered) proceedings does. Unless the threat can be justified, fashion designers could find themselves on the wrong end of such a claim. For the threat provisions to apply, there must be a threat of infringement proceedings (whether implied or express); it is arguable whether simply comparing products, as Tatty Devine did, would amount to an implied threat.
Social network sites also have limitations -- they can’t provide any financial compensation for the victims of copycat products or guarantee that imitations will be permanently taken off the market. By way of example, it’s unclear whether Primark have removed the floral print blazer and trouser set which was complained of from their stores.
For smaller labels and independent designers who can’t afford to bring a claim, social network sites may be helpful in publicising copycat products. But victims of copycat products should be alive to the risks and limitations of using them, as Tatty Devine appear to be. In an updated post on their blog they state “We talked to our lawyer…about the jewellery that’s being sold at Claire’s Accessories, and we’ll be taking things forward”.
Merpel says, the problem lies with copyists who can be named but who, being shamelsss in the first place, cannot be shamed: she also wonders whether dishing out the same treatment to Primark might just have the effect of causing a stampede of shoppers to that popular bargain outlet in search of something they could less easily afford from the legitimate source.
Tat the Cat here and here