Is it illegal to sell designer inspired items in a retail environment?

Asked almost 2 years ago - Seattle, WA

I.e a store with regular merchandise and designer inspired merchandise from china??? You buy fake designer sunglasses at the mall/fair all the time... So if you are stating it is designer inspired is it still copyright infringement?!?! I want to open a legit store like this but am not sure of the laws... Thanks

Attorney answers (7)

  1. Michael P Matesky II

    Pro

    Contributor Level 10

    18

    Lawyers agree

    Answered . I assume that "designer inspired" is a euphamism for a knock-off, right? There are lots of potential laws that you might be violating by selling knock-offs, even if you disclose that they are not genuine articles.

    First, depending on the type of articles at issue, it might be considered copyright infringement, which has nothing to do with whether you disclose that the article is genuine or not. For example, I think that Luis Vuitton claims copyright protection over the patterns of the fabric and/or leather in their bags.

    Second, it might be considered trademark and/or trade dress infringement or counterfeiting. Disclosing that the article is not genuine may help a little regarding this claim, but there are cases stating that such disclaimers are not necessarily sufficient to avoid a judgment of trademark infringement.

    Moreover, in some cases, there may be design patents covering the ornamental design of the products, such that selling knock-offs would be considered design patent infringement.

    In short, selling "designer inspired" knock-offs is a legal minefield.

    I am an attorney, but I am not YOUR attorney. By providing free, generalized information, I am not entering into... more
  2. John E. Whitaker

    Contributor Level 16

    18

    Lawyers agree

    Answered . It greatly depends on what "designer inspired" means. If what you mean is that you want to sell direct knock offs, then that will not only lead to civil liability but may also make you criminally liable. But if you just want to sell products that look "kinda" like some name-brand stuff, then you might get away with it.
    The fact that you indicated the merchandise is from China leads me to believe that you should stay far, far away from it. It appears that you are in Seattle. You should call us and talk about the trouble that a local store owner got in by selling handbags that just looked "kind of like" a Coach brand bag.
    Good luck.

  3. Frank A. Natoli

    Pro

    Contributor Level 20

    15

    Lawyers agree

    Answered . Hi,

    Very good advice here. I will just add that in the US we do not protect fashion designs under our copyright laws because we consider the articles themselves as functional and not purely creative expression (a simplified reason to be sure). This is why you see all the dresses on the red carpet at H & M the next day.

    That said, there are SO MANY other ways to get into trouble. As some others noted, patterns in the fabrics, trademarks, patents (wherever relevant) may all be protected. You may also expose yourself to misrepresentation claims as well.

    The best advice is to vet everything with an IP lawyer before you decide to make any investment. I will link you to what I believe is a helpful and relevant overview of copyright law in fashion below.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the... more
  4. James Juo

    Contributor Level 16

    13

    Lawyers agree

    Answered . It depends. Many stores sell their own versions of recent fashion designs under a private label. In general, copyright law does not extend to clothing designs (although there are some bills pending in Congress which may change that, if they are ever passed), although there are some exceptions such as a design pattern printed on fabric. A design patent could cover clothing, but this form of IP protection is underutilized because the lead time to obtain a design patent may be too long for a fashion item with a short life cycle. However, there are many design patents for designer sunglasses, and companies such as Oakley vigorously enforce them. If there are "fake designer sunglasses at the mall/fair all the time," they may merely be small-time operators that are under the radar (do not assume that they are legit). Finally, selling "inspired" designs that use the original's trademark (such as the CC logo for Coach, the red sole shoes for Louboutin, etc.) could be an infringement or counterfeiting. If you are going to open a store, you should consult with an attorney about your business plan to help you avoid legal pitfalls.

    This answer is for informational purposes only. It is not intended as specific legal advice regarding your... more
  5. Mario Sergio Golab

    Contributor Level 17

    12

    Lawyers agree

    Answered . You can be inspired all you want so long as you do not copy.
    There is a sophisticated test that any IP Attorney you consult would be able to carry out for you and that is how substantial is similarity between the inspired and original merchandise.
    Further facts to be checked. Is the original merchandise protected by a US Patent? If so the area of protection includes equivalents and the differences must be substantial.
    Trademarked product also has a "cone" of protection.
    Copyrighted merchandise enjoys the slimmest protection to inspired works.
    Finally most merchandise is not protected by any means, so you may be free to be inspired or to copy.
    Consult an IP attorney before your inspiration becomes a costly expiration.

    USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my... more
  6. J Scott Scarbrough

    Contributor Level 13

    11

    Lawyers agree

    Answered . Mr. Majesky and Mr. Golab have answered your question very well. The only thing I would add is that if you have the money, drive, and ambition to open a store, you don't want someone taking it all away from you. You should seek legal advice in all the aspects of opening your proposed business.

    My disclaimer is simply that Avvo already has an adequate disclaimer.
  7. Bruce E. Burdick

    Pro

    Contributor Level 20

    9

    Lawyers agree

    Answered . "Designer inspired" is it now? 17 USC 501 and 15 USC 1114 make that problematic. Inspiration and transformation are fine, counterfeiting and deceiving customers is not. No, I do not buy fake designer sunglasses at the mall/fair all the time. I buy legitimate product.

    You are, to put it bluntly, lieing to us. Legitimate stores do not ask if they can sell "replicas", "tribute products", "commemmoratives", or whatever the jargon of the moment is for counterfeit merchandise.

    Taking on the heavy hitters of the commercial world in illegal knock-offs is no way to start a "legit" store. And what is that anyway doublespeak like in 1984. Is like like "Bad" to Michael Jackson meant good. Or like "hot" and "cool" mean the same thing?

    Check out http://www.iacc.org/ as it will be assisting the cops and the cops, well... they will be coming to take you away, ha ha, ho ho, to the funny farm...." ["funny farm" or as you in your alternate lingo universe would call it "rehabilitation and education facility" - and I would just say pen or prison or jail] Google Victoria Espinel, and decide whether anti-counterfeiting has a high enough profile that you might want to reconsider "designer inspired" merchandise.

    Your "legit" store will likely be needing a criminal defense attorney, so I added that to the categories listing at the top.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is... more

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