How Professionals View this Hot Topic

Though not a professional journal, the first place I decided to check for a response to this topic was the website for the Council of Fashion Designers of America, or CFDA. When using the site’s search field for the word “knockoffs” I was taken to a news release dated April 30, 2009, titled Delahunt, Goodlatte and Nadler Reintroduce Legislation to Combat Design Piracy. The three names in that title refer to United States Congressmen from Massachusetts, Virginia, and New York. The brief article on the legislation they were proposing at the time contained points that are key to the issue –

· most industrialized nations have legal protection for fashion designs, while US laws provide trademark protection on brand names and logos, but not on the clothing itself

· it is estimated that the counterfeit merchandise business has cost America 750,000 jobs

· the fashion industry in New York is a major sector of the national economy, producing $350 billion dollars in revenue, hundreds of thousands of jobs, and should be protected from opportunists who avoid the costs intrinsic to creating a garment

· according to US Customs and Border Protection counterfeit merchandise costs American companies $200 to $250 billion in sales

The Design Piracy Prohibition Act was not passed, but has since evolved into the Innovative Design Protection and Piracy Prevention Act (IDPPPA) presented to the House Subcommittee on Intellectual Property, Competition, and the Internet, in July 2011. My research led me to a testimony before that committee by Harvard Professor of Law, Jeannie Suk. Ms Suk provides several excellent points. The first of those is that although all forms of creative work draw references from prior or even existing sources, there is a difference between borrowing from ideas and blatant replication of someone else’s work.

It is here that I should point out that there are two types of counterfeiting or piracy that go on in fashion. One is the issue of the replicators who sell fake designer goods that gives the appearance of being genuine, the other is the matter of the duplicators who steal the designs down to the smallest details, and then put their own label on them. An example of the latter is the American chain store Forever 21. As of the postings I could find, the company has been sued more than 50 times, many of those suits by well-known American designers, but because of the current US laws, or lack thereof, cases either could not be won or were settled. Substantiating the fact that US laws do not offer American designers the same protection as those in other countries is the fact that although Forever 21 has more than 500 stores in this country, they have none outside the US. This is because of the laws in other countries, and is in contrast to their Europe-based competitors, H&M and Zara. Those companies borrow ideas from designers and produce clothing that is influenced by them, but do not directly copy them, as does Forever 21.

Ms Suk reassures the committee that the IDPPPA is not intended to focus on those whose products are inspired by fashion designers. This legislation is intended to prevent the sale of exact knockoffs.

The proposed legislation would also encourage partnerships between high-end designers and discounters like Target and H&M, as it would be incentive for the consumer to purchase sought-after designer labels from those stores. So, even though there would be lost selection for the consumer via one avenue, it could be increased via another.

My final source for the professional perspective on this matter was an entry titled Counterfeiting as corporate externality: intellectual property crime and global security, by Simon Mackenzie. This article took an entirely different approach to the subject, stating that:

· designers are the cause of the problems through hyper branding and marketing;

· designers expect to create an extreme desire for their items and then think they should be able to control that desire;

· designers choose to outsource to countries where there is less control over unauthorized use of their designs, in order to reduce production costs and increase profits, which must indicate that they lose less to counterfeiting than they gain from outsourcing to these countries;

· and lastly, there are other issues involved in the outsourcing such as environmental concerns, health and safety concerns for the workers, and the known involvement of organized crime in making and distributing the fake goods, all of which are issues designers choose to look past.

While there are some interesting and probably valid points to Mr. Mackenzie’s ideas, for me they fail to address what I see as the core issue, which is theft. Whatever failures or shortcomings designers may have in the operation of their businesses, the idea that one person can put all of their talents and efforts into creating something that other people are willing to pay for, and then a third party feels they have the right the steal that work and sell it as their own is just wrong. But, it will be interesting to see whether American designers are ever able to successfully impact, stop, or even inhibit such a huge industry.

Works Cited

Mackenzie, Simon. “Counterfeiting as Corporate Externality: Intellectual Property Crime and Global Insecurity. “Crime Law and Social Change 54.1 (2010): 21-38. Web. 02 Feb. 2012. http://www.springerlink.com.proxy.libraries.uc.edu/content/m2116h407293u33h/

United States. Cong. Senate. Subcommittee on Intellectual Property, Competition, and the Internet. Innovative Design Protection and Piracy Prevention Act. Hearing. 15 July 2011. 112th Cong., 1^st sess. Washington: Government Printing Office, 2011. http://judiciary.house.gov/hearings/printers/112th/112-46_67397.PDF