This week, a look at copyright lawsuits happening across fashion, including what’s causing them and what they mean for the future of the industry. Scroll down to use Glossy+ Comments, giving the Glossy+ community the opportunity to join discussions around industry topics.
The fashion industry has been feeling particularly litigious over the last year.
Several fashion brands are currently engaged in or have recently settled lawsuits over copyright infringement. It’s a touchy issue at the best of times but the rise of generative AI, an ongoing economic downturn and the establishment of new and lightly regulated online marketplaces all serve to make these lawsuits thornier than ever.
Among the most recent lawsuits is one by Nike. The company announced in December that it was suing sneaker influencer Eben “Cedaz” Fox who, it said, openly promotes counterfeit Nike goods, gives instructions on how to purchase counterfeit sneakers and even runs a Discord community where he sells counterfeits.
Fox is open about his embrace of counterfeits. In a popular YouTube video with more than half a million views, Fox brings a $15 pair of counterfeit Air Force 1s into a Nike store and successfully returns them for a refund of the full retail price.
Influencers like Fox encouraging and even being a source for counterfeit goods is a growing problem, said Tiffany Ferris, a trademark attorney and partner at the law firm Haynes Boone.
“Influencers have really changed the game here,” Ferris said. “I work with influencers, and you see it every day. They call it a dupe or a look for less instead of a fake, and all of the sudden it doesn’t seem so nefarious.”
She said the damages Nike is seeking in the lawsuit against Fox — three times the amount of money he made from promoting counterfeits — is likely secondary to Nike’s main goal: sending a message to other companies that may try to traffic off its image.
Similarly, Nike has sought to protect its trademark in its ongoing lawsuit with StockX. The sneaker reseller was selling NFTs minted with images of Nike shoes, which StockX defended by saying the NFTs were tied to real sneakers kept in the company’s vaults and which it has the right to sell. Nike’s argument is that the NFTs are themselves a product made with Nike’s trademarked imagery.
That lawsuit began in 2022 but Nike took it further in 2023 when it alleged that StockX was also carrying counterfeit Nike sneakers. In 2023, Nike also sued Lululemon, Skechers and New Balance, all over patent infringement or accusations of copying designs from Nike. Nike did not respond to a request for comment on this story.
Outside of Nike, recent trademark disputes include Adidas suing Thom Browne in 2022 over the use of four stripes that were similar to Adidas’s trademarked three stripes, with the court ruling in Thom Browne’s favor in 2023. Aspen Skiing Company, which owns ski resorts and sells ski apparel, sued the ski apparel brand Perfect Moment on January 1 alleging that a Perfect Moment photoshoot was clearly shot at an ASC resort, creating the perception that the two brands are affiliated.
The most explicit ongoing suit over the potential for brand confusion involves the fashion brand Rhode, founded in 2014, and beauty brand Rhode, founded by Hailey Bieber in 2022. When Bieber launched her brand, the fashion brand’s legal counsel, Lisa Simpson, told Glossy that the infringement was “knowing and intentional.” The founders of the fashion brand alleged in 2022 that Bieber tried to buy the right to the name from them but they refused. Fashion and beauty are closely related categories, so the potential for confusion that the two brands are related seems high. The suit is ongoing and neither of the two brands responded to a request for comment on this story.
The possibility of confusion is at the heart of trademark disputes, according to lawyers Ferris and Rania Sedhom, managing partner of the law firm Sedhom Law Group who specializes in working with fashion brands. Brands are protective of their trademarks because, if they’re not, it leaves them open for others to use those trademarks in ways that don’t fit with the brand’s image.
“Intellectual property law requires a copyright or trademark holder to defend its IP,” Sedhom said. “It is, therefore, no surprise that these cases are being initiated. However, the increase in the number of these cases may be related to the downward economy. Luxury brands are seeing a decline in sales, and midmarket and fast fashion are competing more aggressively for market spend. When consumers are spending less, or differently, differentiating your brand, maintaining your brand heritage and protecting your brand’s identity become paramount.”
Sedhom also pointed to the rise of influencers supporting dupes as a factor in brands being more protective of their trademarks. But the rise of lightly regulated marketplaces like Amazon, Etsy, Aliexpress and TikTok Shop has also contributed to the preponderance of fake goods. TikTok Shop, in particular, due to its newness, has been the subject of scrutiny for its plethora of impossibly cheap and questionably sourced goods.
“Some marketplaces have made an effort to stem the flow of counterfeits, like Amazon’s counterfeit crimes unit,” Ferris said. “But there are more and more channels popping up like TikTok Shop, Discord channels and peer-to-peer sellers like the old Napster days. It’s become a big challenge for brands.”
And while it hasn’t caused any major lawsuits in fashion yet, the rise of generative AI is likely to cause more conflict over copyright protection in fashion soon. The New York Times has already sued OpenAI over the appearance of exact verbatim passages from NYT stories appearing in the output of ChatGPT. As brands big and small begin to embrace generative AI models trained on the work of thousands of other designs, the possibility for either intentional or unintentional trademark infringement grows.
“It is too early to make any predictions or provide bright-line rules because there is a bevy of open lawsuits related to AI,” Sedhom said. ”As a practical matter, once a fashion brand makes an idea available to the public, there is nothing it can do to stop AI from ‘learning’ its messaging or being put into an AI database for other purposes. However, unique images and copy that define a brand or campaign are protected, regardless of new technology and its capabilities. For now, the focus of brands should be on creating special messaging and imagery that project or emote to the consumer.”