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32 Colum. J.L. & Arts 333 (2008-2009)
An Uningenious Paradox: Intellectual Property Protections for Fashion Designs

handle is hein.journals/cjla32 and id is 339 raw text is: An Uningenious Paradox: Intellectual Property Protections for
Fashion Designs
Lauren Howard*
Even amateur fashion-followers can identify luxury goods with glued-on
phony labels spewing forth from        garbage bags as counterfeits.      In contrast,
knockoff fashion which copies the style but not the label of a runway design, might
seem like a harmless imitation of a trend. 1 Unlike illegal counterfeit luxury goods,
knockoff fashion designs can be purchased at the familiar stores in the local mall.
Discerning why some knockoff fashion goods are illicit while others are legitimate
is not a simple task. Linguistically, the fine line distinguishing imitation from
counterfeiting rests on intent; imitations are merely copies, while counterfeits are
copies of valuable goods made with an intention to deceive.2             Legally, the
distinction is rooted in the different types of intellectual property protections
conferred under law. Logically, both amount to profiting from the creativity of
Contrary to trademark-infringing counterfeits, knockoff fashion does not
explicitly pass itself off as the original, for example by attaching false labels to the
imitation goods; there are no ersatz Prada logos to be found within in the walls of
Forever 21. Yet the intention of the knockoff manufacturer is to create a product
that could deceive-a garment so similar to the valuable original that the wearer
could mislead his or her audience into believing its authenticity. The ability of
these products to blur the line between real and fake lures shoppers, while drawing
outrage from the imitated designers.3 The work of knockoff artists has become a
popular topic for discussion both angry and amused. It provides fodder for scores
* J.D., Columbia University School of Law, 2009. 1 would like to thank Professor Jane Ginsburg
for her valued assistance on this Note; Professor Scott Hemphill for his contributions; and the staff of
the Columbia Journal of Law & the Arts.
I.  Knockoffs have been defined as lower price designs that are similar but not exact copies.
Lisa Jones Townsel, Like the Real Thing: Business is Thriving for Accessory Knockoffs, ST. LOUIS
POST-DISPATCH, Sept. 13, 2003, p. 30L (quoting Nancy 0. Bryant, author of The Business of Fashion:
Designing, Marketing and Manufacturing).
2. The Oxford English Dictionary defines to copy as to imitate the behavior or style of,
whereas counterfeit is defined as exact imitation of something valuable with the intention to deceive or
defraud. CONCISE OXFORD ENGLISH DICTIONARY 316, 327 (Catherine Soanes & Angus Stevenson,
eds., 11 th rev. ed
3.  Designer Zac Posen has said, It's time for those who rip off the work of others to know that
it just won't fly anymore.    Support artists and designers.  The Industry Speaks Out,
http://www.StopFashionPiracy.com/theindustryspeaks.php (last visited Feb. 18, 2009). Anna Sui
created T-Shirts as gifts at her Fall 2007 show depicting the co-owners of Forever 21 as wanted bandits
of the Old West, including a biblical reference, Thou shalt not steal. See Fashion Scoops: Vigilante
Justice, WOMEN'S WEAR DAILY, Sept. 11, 2007, at 13.

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