Protecting Fashion in the Age of AI
Artificial intelligence (AI) is making an impact in nearly every industry. The impact of AI on the creative arts has been particularly complex and controversial. In the world of fashion, significant resources may be devoted to identifying consumer needs and designing new products by both small independent brands and large corporations. However, there is a rise in AI-powered algorithms to track, reverse engineer, and mass-reproduce fashion artists’ works, producing similar products without incurring the overhead costs of design and marketing. Protecting creators from fashion product copying has therefore risen in complexity with associated costs that can present significant challenges to brands that may already have their resources constrained.
A Case Study of Independent Brand PopFlex® on Potential Defenses
Recently, Cassey Ho, a fitness entrepreneur and owner of PopFlex®, began openly discussing challenges and successes defending her designs against infringement. Cassey’s brand PopFlex® is most recently known for the Pirouette Skort, which made notable waves in pop culture when Taylor Swift was seen wearing it in a lavender shade in both a music video and a social media post. Immediately, the skort (a garment combining features of a skirt and shorts) went viral, being released in different shades, lengths, and even being included in a series of limited releases at Target retail stores. The success of the Pirouette Skort made it a target for AI-powered copying. However, Cassey had done something not all small designers have done, i.e., she had obtained a U.S. Design Patent (USD1010983S1) for her skort in August 2023, approximately 8 months before Taylor Swift shared the video starting the viral craze. Today, Cassey claims to have taken down 393 internet sellers of reproductions of her Pirouette Skort alone, and over 100 others related to her four other design patents covering different PopFlex® products [1].
The most notable cases related to the Pirouette Skort include a situation with massive fast-fashion brand Shein as well as Nordstrom. Shein leverages AI for rapid design in such a way that as many as 600,000 items are on their website at any given time, an achievement that was simply impossible before the advent of AI and massive industry-wide data collection [2]. Valued at up to $100 billion in 2022, Shein is one of many corporations with significant resources to reply to trending fashion with rapid development of competing products.
Thus, for original creative fashion brands, contemplating potential strategies for protecting their designs even before new product launch is more critical than ever. Cassey released the Pirouette skort in August 2022 and then re-released a second version with design improvements in January 2023 [3]. Within three weeks of the second release, Shein released a replication of the skort, even allegedly copying marketing images used by PopFlex®. This situation is not uncommon given the large volume of data consumed by AI-models and continually raises the question of whether the output of such systems may be copying, derivative, or something else.
Initially, Shein requested a meeting with Cassey, requesting a partnership and even asking Cassey to submit her new designs to Shein to prevent further issues. Although no agreement was reached, the situation led Cassey to file for her first design patent in August 2023, one year after the initial release of the Pirouette Skort. In a more recent blog post, Cassey thanks Shein for their role in inspiring her to obtain this design protection and allowing her to learn about the ways she can protect her brand and product line. Notably, had she had not met with Shein when she did, she may have missed the time window in which to file her design patent application altogether as she was able to file her U.S. design patent application exactly one year after releasing the initial design for sale.
Since this incident, another large retailer released a product similar to the Pirouette Skort. After discovery of another potential Pirouette Skort copy being manufactured by Gottex and sold at Nordstrom, Cassey’s legal team sent a cease-and-desist letter to Nordstrom [4]. The situation is currently unresolved, though a search reveals that the allegedly replicated skort is no longer being sold on the Nordstrom website, which may indicate that Cassey has had at least some success in protecting this design through her design patent.
Types of Intellectual Property Protection in Fashion
In today’s world of fast-fashion and AI, it is imperative that artists understand the various ways to protect their work. In terms of fashion protection, the following IP tools, discussed in greater detail below, can be leveraged:
1. Utility Patents
2. Design Patents
3. Trademarks
4. Copyright
Each of these tools may be used in different ways depending on the characteristics of the article of clothing being designed and produced. In some situations, all of these tools may be utilized simultaneously to provide maximum protection. In other situations, not all of these protection methods will be suitable. For example, applications for both utility patents and design patents must be filed within one year of first offer for sale, sale, disclosure in a printed publication, or public use. If more than one year has passed since an article of clothing has been offered for sale, a design or utility patent is unavailable as a tool to protect this design, though trademarks and copyright may still be utilized, as discussed below [5].
Though one may not initially think of a utility patent being used in fashion, utility patents provide protection for functional aspects of a fashion item. Though utility patents are notably more expensive and complex to acquire, often taking several years to issue, for functional clothing these can prove invaluable. For example, Spanx LLC was granted a patent in 2024 related to a “Stretchable gusset” (US Patent No. 12,121,075). Though not every article of clothing will be suitable for a utility patent, it is a tool that should be considered based on the functional aspects of the clothing article.
Design patents are a less expensive, simpler strategy to obtain a patent for an article of clothing, focused primarily on the aesthetics of the clothing over the functionality. Typically, a design patent may take between 9 to 12 months to review and issue, and remains in force for 15 years from issuance. There are no maintenance fees and legal fees are significantly less as there is no detailed specification included, as is required in a utility patent application. Enforcing a design patent does not require an exact replica; rather, the threshold is whether “an ordinary observer familiar with the prior art would be deceived into believing the accused design is the same as the patent design.” Thus, a design patent provides an effective and lower cost means of protection compared to a utility patent, though as discussed above, it must be filed at the right time.
Trademarks provide protection of the name and logos of a brand at much lower cost than patent protection. In terms of fashion, trade dress is a branch of trademark that is particularly useful. Trade dress is associated with the overall look of a product if consumers associate that look with a particular brand. For example, consumers associate red-soled high-heeled shoes with Christian Louboutin. Often times, a brand may be able to initially obtain a design or utility patent and later leverage trade dress protection once the particular design obtains more traction in an industry segment, giving a secondary avenue for protection as the product gains ubiquity.
Copyright can provide protection for artistic aspects of the clothing items including graphics, patterns, or fabric designs. Though the copyright is inherent upon creation, registration of the copyright is a prerequisite to enforcement, and is simple and affordable. Copyright protection is particularly useful when the article of clothing contains a specialized image or artistic depiction separate from the useful article itself.
Conclusion
With the current trends of AI being used as a resource in rapid and comprehensive fashion design and production, it is more important than ever for businesses to understand their options in protecting their designs. Given the impact of AI in the industry, artists should endeavor early on to understand the value of protecting their designs at the right time using one or more of the various IP tools available. Depending on timing, aesthetics, and functionality, either utility patents, design patents, trade dress, and/or copyright may be leveraged.
References
[1] Blogilates, HBD to me and my first design patent!, https://www.blogilates.com/blog/happy-birthday-to-my-first-design-patent/
[2] Medium, SHEIN and the Rise of Ultra-Fast Fashion: A Case Study on the App that Changed Shopping Forever, https://medium.com/@adesinaf23/shein-and-the-rise-of-ultra-fast-fashion-a-case-study-on-the-app-that-changed-shopping-forever-f0f41312151d
[3] McGrath, Louise, A CRIME OF FASHION: POPFLEX, A CASE STUDY OF A BRAND VICTIMIZED BY INTELLECTUAL PROPERTY THEFT.
[4] Blogilates, One of the largest retailers in America is trying to silence me, https://www.blogilates.com/blog/popflex-nordstrom-rack-dupe/
[5] Landslide. Friedland, et al. Choosing the Right IP to Protect Fashion Goods.
