Shein faces new infringement accusations

Fast fashion giant, Shein, being accused of copyright infringement is not a new story. But this is the first time that the accusations have come from another giant of the industry.

Just off the back of the news that Shein is facing a lawsuit in the US for racketeering due to copying the work of numerous independent designers, the company are now also coming under fire in Hong Kong where they are facing a copyright infringement lawsuit from well-known high street name H&M.

Where the racketeering case relates to the copying of artwork which unambiguously sits under copyright protection, the H&M case allegedly relates to garments such as swimwear and sweaters. Whether copyright is applicable to such garments is a question with a different answer depending on the relevant jurisdiction. In Hong Kong it seems that the court have allowed the case to proceed following a first hearing. However, had the case been in the UK, garments such as swimwear and sweaters may not be covered by copyright protection, particularly in the case where both parties are mass producing the garments such that they are unlikely to fall into the closest criteria of "a work of artistic craftsmanship".

Continuing with the hypothetical situation of the case being brought in the UK, unregistered design rights may be a more reliable legal crutch for H&M to lean on. The length of time which the unregistered design right subsists (3 or 15 years) depends on whether the garments are considered 3D objects or 2D objects, and whether the distinctive features lie in the shape and configuration of the garments or in other features of the appearance of the garments, so quick action would be needed. It would also need to be proven that H&M owned the designs, and that Shein had copied them, for the design right infringement action to be successful.

Better yet - had H&M obtained design registrations for their garments, the matter of enforcement would have been simplified since the need to prove ownership and coping would be removed. Instead, it would need to be determined whether the designs create the same overall impression on an informed user. (No shade to the fashion girlies, but how confident are you in spotting a Shein dupe in the wild?)

The same concept applies to independent fashion designers, wishing to protect themselves from fashion giants copying their designs. Although it requires filling in an online form and paying a modest fee, design registrations may be the most straightforward way to protect yourself against your designs being copied.

At Marks & Clerk, we have a team of experts in protecting designs, for big businesses and independent designers alike. If you are looking for guidance on protecting your fashion designs, then please get in touch.