Ruffle skirts, puffed sleeves, big bow clasps… Gothic Lolita clothing tends to repeat the same design features. Some items stem from different brands, yet look almost identical. Compare, for example, the coat on the left by Metamorphose Temps de Fille with the one on the right by Fan Plus Friend. Can you spot the differences? The law student in me asks: how does intellectual property law figure into the story?
Garment designs are generally not copyrightable because clothes are considered "useful articles." The key test is whether the design is separable from the utilitarian function of the item. Fabric prints, patterns, and graphics meet this requirement. In the photo above, both the drawing on the h.NAOTO cutsew and the fabric print from Emily Temple Cute qualify for copyright protection. The shape, style, cut, and dimensions of the shirt, however, do not.
Trademarks are the distinctive symbols used to indicate the source of goods. The double swan logo, for example, is Metamorphose's signature. Companies can protect their marketing assets (brand name, logo, and sometimes oft-used colors) by registering them as trademarks.
Fashion designs are rarely patented because most do not meet the “novelty” standard of being new, inventive, and industrially applicable. Cuff and collar shapes that have been around since Queen Victoria’s days generally don’t apply!
So, can we charge Fan Plus Friend with infringement? If the company were copying Baby, the Stars Shine Bright’s logo or graphics, it would be in the wrong. However, borrowing functional design features – such as heart-shaped clasps and wavy coat bottoms – is acceptable. FPF uses cheaper materials and targets a less exclusive market; the coat on the right does not compete with Baby’s on the left. Customers buy brands for the image that the company portrays - and anyone who has read Kamikaze Girls knows that Baby is held in godlike esteem while knockoffs are frowned upon. Shady as it may seem, Fan Plus Friend is merely “paying homage” and not breaking the law. Case closed.
