In E-Commerce Era: Cracking Infringement Issues in the Clothing

Industry by Design Patents

Jing Ye

School of Law, Hainan University, Haikou, Hainan, 570228, China

Keywords: Design Patents, Clothing Industry, Electronic Commercial Platforms, Infringement.

Abstract: Rights holders and consumers have been negatively impacted by infringement issues in the clothing field as

e-commerce explodes in recent decades with imitations. The paper studies how design patents can crack in-

fringement issues with its best efficiency. Although there are copyright law and patent law safeguarding these

legal issues, copyright law has its threshold for clothing, which creates a significant loophole for plagiarism.

This makes researching design patents a better way for right holders to defend their designs. Unfortunately,

application time for design patents is too long for clothing industry as clothing cycle lasts approximately four

months, while application process normally undergoes six to eight months. The application progress makes

designers to uphold their rights difficult, therefore, shortening time cycle is the priority. Furthermore, author-

ities can reference ways such as concept of unregistered designs and combination of design patents and other

rights, protecting the same design with different rights simultaneously.

1 INTRODUCTION

Despite the existence of the fake fashion phenomenon

for 150 years, the contemporary counterfeit fashion

industry including clothes has transformed into an

unparalleled force, surpassing any previous era and

exerting a significant negative impact on both

genuine fashion brands and customers (Araujo,

2024). Additionally, the appearance of electronic

commerce provides counterfeit fashion products a

global platform to a wider audience (Araujo, 2024).

Technically, both copyrights and design patents are

able to deal with the infringement problems in the

clothing industry, in China, anti-unfair competition

law and trademarks can also play a significant role in

tackling infringement problems. It appears that the

most logical and ideal path for designers to protect

their "original works of authorship fixed in any

tangible medium of expression" is through receiving

including America and China, copyrights only protect

clothing being separable from the useful article

instead of protecting it as a whole, meaning if the

design on a piece of clothing is in any way functional

or useful, it cannot be protected by copyrights. In

other words, only the two-dimensional design on a

clothing item is protectable if it is an original work of

authorship. This regulation causes a legal loophole

used by plagiarists, claiming they are using three-

dimensional designs or referencing the design in

question yet not copyrighted drawings (Li, 2021). In

that case, it is crucial to discuss design patents as

another alternative solution to crack such difficulties

in the clothing industry and according to Chinese

patent law, article 42, once applied, people of interest

can have this right for 15 years. This article will first

explain the legal loophole copyright exists

specifically, then delve into reasons to research

design patents, legal problems design patents have

and the dilemma designers face as right holders, and

finally present some of the legal improvements that

can be referenced by Chinese authorities and

researchers.

2 PROBLEMS AND REASONS

2.1 Legal Loophole in Copyrights

Chinese courts tend to hold the position that the

reproduction of clothing design does not reflect in the

reproduction of aesthetic art, therefore it is not a

reproduction within the meaning of copyright law,

while the reproduction of clothing samples

constitutes the concept of the reproduction in the

Ye, J.

In E-commerce Era: Cracking Infringement Issues in the Clothing Industry by Design Patents.

DOI: 10.5220/0013962200004912

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Innovative Education and Social Development (IESD 2025), pages 23-26

ISBN: 978-989-758-779-5

reproduction of clothing samples, there is a limitation

that only clothing whose practicality and artistry can

be independent of each other can be safeguarded by

copyrights as a work of art, leading to a situation that

not all the clothing is included in the copyright law

(Yi, 2021). Lawyers and professionals may suggest

designers to protect their clothing designs by splitting

them into constituent elements if elements in clothing

are original, which may also achieve the effect of

preserving their rights (Li, 2021). Still, there are some

problems with this method, for instance, the

patentable components of fashion design (i.e.zippers,

buttons, etc.) are minimal, meaning some of the

components are not able to be protected (Mills, 2009).

In 2020, the Beijing intellectual property court judged

a case, LINC Chic company sued Bosideng company,

claiming the latter company infringed on their

clothes, while the court suggested and finally

convinced Bosideng company did not infringe LINC

Chic’s clothes, as the court said: Whether it is the hat

design, pocket zip design, slanted pockets with

graphics and logos under the right pocket or the

dovetail design, zip design and pocket design, they

are all the usual designs and combinations commonly

used in garments, which could not be protected by

copyrights (People's Court of Xicheng District,

Beijing, 2018; Beijing Intellectual Property Court,

2020). Moreover, in this case, the court also

mentioned that the artistic beauty of a garment on

clothes cannot be separated from its functionality

(People's Court of Xicheng District, Beijing, 2018;

Beijing Intellectual Property Court, 2020). In judicial

practice, courts hardly identify the judgement of

originality, the judgement of ‘contact plus substantial

similarity’ and define copying (Li and Ren, 2021).

The defects of using copyrights as a legal weapon to

protect designs are unfriendly to the clothing industry

and cause designers to find it hard to defend their

designs as safeguarding rights consumes a large

amount of time and money, yet may eventually turn

to failure.

2.2 Reasons times Explore Design

Patents

Despite professions argue existing copyrights, design

patents and other relevant laws are enough to tackle

the infringement problems, however, firstly, the

safeguarding path through copyrights is not straight-

forward and simple, rather than acquiring rights to an

entire garment, image, or “look”, designers must

compartmentalize a piece of fashion into its

functional, also consuming countless efforts yet may

without a successful result (Mills, 2009). Moreover,

using the trademark as a protection also has a flaw

and risk. In 2017, Gucci, a worldwide known luxury

brand, sued Forever 21, a fast fashion company,

claiming this fast fashion company has infringed their

trademarks, which consist of three bands of specific

depictions of green-red-green and blue-red-blue color

combinations. However, Forever 21 soon required the

court to cancel Gucci’s exclusive trademarks

registration, which led to the trail complicated and

had potential risks for their exclusive registered

trademarks (United States District Court Central

District of California, Western Division, 2018). Not

only the trail Gucci in America, but also other brands

face this type of risk for different reasons as

trademarks can be withdrawn, making trademarks not

a capable weapon to protect designs. For example, in

2013, the authority in the United Kingdom revoked

Gucci’s GG trademark after nearly 20 years on the

United Kingdom register (Worldip, 2018). In the

same year, The China Trade Mark Office (CTMO)

has canceled Burberry's trademark on its signature

tartan pattern the mark on non-use grounds (Worldip,

2018). Additionally, once applicators are succeeded

in getting their clothes a design patent, then dealing

with infringement problems would be easier and more

straight-forward, as design patents are different from

copyrights in that an accused infringer has no defense

of independent creation, as well as the whole clothes,

would be protected instead of a part of clothes or art

of work with originality in two dimensions (Locke,

2005).

3 IMPERFECTION OF DESIGN

PATENTS

The main condition for registration of design patents

is absolute novelty. Absolute novelty means the

design must not be disclosed in any form prior to

registration (Tarverdi, 2022). However, there is a

huge legal imperfection design patents face, which is

the application time are too long for seasonal clothing

industry. It can take six to eight months for an

application to be processed, making design patents a

vase because a clothing cycle is around four months

and this delay makes design patents ineffective to

right holders in the clothing industry (Tarverdi,

2022). The delay affects the right holders of the patent

exclusive, facing the risk of copying and imitation,

moreover, the electronic commercial platforms have

contributed to these such chaos on a large scale.

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4 DILEMMA DESIGNERS FACE

With clothing trends constantly evolving and

changing, fast fashion companies like Shein have

taken the world by providing customers with cheap

clothing that will show up on their doorsteps in days,

not to mention this type of corporation has its own

electronic commercial platforms or prominent

presence on TikTok, Instagram and other large social

media, through influencers, marketing and

advertising, which even offers more convenience to

their members (Gardner, 2024). However, this

situation sacrifices independent fashion designers,

whether big and small, having them face an ongoing

challenge: ideas and designs stolen which are then

directly or indirectly replicated by international

companies for a fraction of the price (Gardner, 2024).

Moreover, many designers are unable to fund the cost

of litigation against fast fashion brands who have

virtually unlimited resources and even ‘budget a set

amount of money each year to pay settlements’

(Palladinetti, 2023).

To electronic commercial platforms, the official

administration transfers part of its power to these

platforms, hoping they can play a monitoring role in

digital markets and easing the infringement problems,

and eventually protects the intellectual property rights

(Wang and Yang, 2022). It seems a good mechanism

for the protection of intellectual property rights and

right holders, however, in the process of specific

implementation, while making the electronic

commercial platforms bear too many obligations, the

lack of necessary professional assistance from

administrative organs also affected the enthusiasm of

the platform to safeguard its rights (Wang and Yang,

2022). On the other hand, the e-commerce platform is

essentially a commercial subject, pursuing profits is

its ultimate goal, fairness and justice are not the value

orientation of the platform, and it is easy to abuse

private rights in the process of exercising power

(Wang and Yang, 2022). In such conditions, the rights

supposed belonging to designers are not well-

protected and subjects of tort are also likely to argue

based on some legal loopholes, while electronic

platforms do not clearly judge these legal problems as

they are not essential law enforcement.

5 SOLUTIONS

First of all, the prior solution is shortening the

application time, while balancing the review quality,

so that the design patents can be an effective right in

the seasonal clothing industry. Secondly, the

European Union implemented a new, unique design

right covering unregistered designs, which is a design

that could be protected automatically without

registration for three years since it was disclosed to

the public and has presented the world with a way to

protect right holders better, as well as in the UK

(Witzburg, 2017). Chinese patent law has a similar

regulation, in article 24, it says in some of the

conditions the invention does not lose its novelty in

six months, however, conditions do not include such

as a disclosure taking place on the catwalk or in-store

and publication in magazines or trade journals, which

is not a beneficial and relevant provision to clothing

industry. The British label Karen Millen initiated

legal proceedings against Dunnes Stores in January

2007 based on an unregistered Community design

right in its apparel, and sought an injunction and

monetary compensation from the Irish High Court.

Then Dunnes Stores subsequently appealed to the

Irish Supreme Court, which stayed the proceedings

and referred two questions to the Court of Justice of

the European Union, which ultimately determined

that (1) for the purposes of individual character, the

overall impression a design produces on a user must

be different from that produced by a design or designs

taken individually, and (2) the right holder does not

need to prove the individual character of the

unregistered EU design in the infringement action;

the right holder need merely indicate the features

giving rise to the individual character of the design

(Cassidy and Hing, 2015; Monroig and Woods,

2015). The decision provides designers with greater

assurance that their distinctive designs are eligible for

unregistered design protection and reduces the

likelihood of an infringer successfully contesting a

design's validity based on the existence of distinct

elements of prior designs (Ladas and Parry, 2014).

This way may compensate the problem about

applying time in design patent, which is a worthy

regulation to be referenced.

In France, which is known as the ‘capital of

fashion’, in order to avoid the uncertainty of the

application of the law, the French copyright law

specifically states that all industrial designs, enjoy the

protection of both industrial property law and

implementation of dual protection mode. Like

France, Germany also adopts a dual protection model,

with the subtle difference that Germany only grants

and achieves a certain degree of aesthetics (Li and

Ren, 2021). The combination of design patents and

other rights also gives the authority a different and

In E-commerce Era: Cracking Infringement Issues in the Clothing Industry by Design Patents

whole new perspective to protect right holders more.

Additionally, only when problems about rights

belonging solved as improving design patents is an

advanced progress and helping rights belonging be

tackled, electronic commercial platforms could be a

useful cooperative part, supervising the infringement

problems with the authority, assisting right holders to

protect their clothes, to be a machine to solve the

dilemma designers face.

6 CONCLUSION

In conclusion, the fashion industry, especially in the

clothing industry which this article discusses, as it has

a massive market and global impact, not to mention

the assistance of electronic commercial platforms

with technology, demands comprehensive legal

frameworks to protect rights holders and their clothes.

The design patents used to be neglected as it is not as

effective as copyrights, however, if its biggest

imperfection could be improved or even solved in the

future, then it would be a significant tool to crack the

difficulties of infringement. Therefore, authorities

and professionals must do more research in design

patents and refer to more effective concepts that have

appeared in other countries or are not offered in the

world yet can be a superior idea to tackle existing

problems. Moreover, as infringement problems in the

clothing industry are an international issue with the

digital platforms upgraded and connections between

countries deepen, as well as the developments of

Chinese companies such as Shein, there must be

international awareness of the need for protecting

intellectual property rights in fashion, creating

international mechanisms that allow for global

protection.

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