The Unregulated World of IP Law

By Riley Howell

The Unregulated World of IP Law in the Fashion Industry

Earlier this year, Temu was sued by Shein due to claims of copyright infringement. In this ironic case, “Shein alleged that Temu loses money on each sale it makes and uses trademark infringement to make up for the losses,” (Fonrouge). Shein claims that Temu makes knockoffs of its products, which deceives potential customers. This case was filed most likely due to retaliation from a previous lawsuit in which Temu sued Shein for, “mafia-style intimidation of manufacturers” (Forbes). Although there is proof that Temu steals designs, the evidence of Shein doing the same is overwhelming. Currently, there are over 90 lawsuits for Shein claiming intellectual property infringement. These lawsuits span from big brands such as H&M to small artists and designers. Intellectual property law, which will also be referred to as IP law, is highly unregulated in the fashion industry. Huge companies have the funds to sue anyone, which can easily become an abuse of power, while small designers must fend for themselves or spend money they do not necessarily have on a lawsuit.

            In 2021, crochet designer Bailey Prado was sent a link by her followers from Shein. She found that Shein stole 45 of her designers. Crochet pieces cannot be made by machine, so all the pieces were handmade. The price range for Prado’s handmade designs is from around $100 to $300 plus, while Shein’s presumably handmade pieces were $20 or less. Shein is worth $64 billion, so a small business has no chance of filing a lawsuit, due to the legal fees. The only course of action is to call out the company on social media, but it is not guaranteed that they will even get a response back.

Similarly, artists Larissa Martinez, Krista Perry, and Jay Baron found their artwork stolen by Shein. A lawsuit was filed at the District Court in Los Angeles regarding the violation of RICO, which stands for “Racketeer Influenced and Corrupt Organizations” (Schrader). Though Shein desires the case to be dismissed, it is still ongoing.

To reiterate, enormous fashion companies have the funds to hire big-time attorneys for intellectual property cases. The only issue with this is that fashion conglomerates may not always present a viable case. For example, Adidas filed a lawsuit against Thom Browne, in which they lost $8 million. Adidas claimed that the designs Thom Browne made were too like Adidas since there were three stripes in their pieces. The court ruled against Adidas since the three stripes are not distinct enough to claim trademark infringement. Thom Browne’s attorney stated in his closing statement, “Adidas does not own stripes,” (Adidas v. Thom Browne). Losing $8 million does not make a dent in Adidas’ worth, but the fact they can spend this much on someone else using stripes says that they can abuse their power with little to no consequence.

IP law cases are an immensely difficult subject. It is discouraging for designers to feel confident with their business clientele when a fast fashion company can steal the designs to make them at a cheaper price. Again, not every IP case is valid. In fact, when millions of dollars are at stake, it can be a breach of ethics, such as Adidas v Thom Browne. Intellectual property is murky in the industry, but there are more and more future attorneys going into the IP law field. The fashion industry needs an innovative solution since stealing designs is nothing new. Law and fashion are uniquely creative in their respective industries, so working together and letting the justice system work, although difficult to navigate, can potentially allow the creative freedom that is necessary for the success of the industry and its designers.