Fashion Meets Web3: The Threadbare Protection for Designers Spills Over into the Decentralized World

Introduction

Today, the global fashion industry generates more than two trillion USD annually, and everyone is a consumer of fashion—even those who claim they just “throw on an outfit and go” tend to make conscious fashion choices in their everyday lives.¹ The industry began to boom in the 1980s when companies like H&M and Zara created the “fast fashion” business model, whereby they imitated the latest trends from the runway and reproduced them at a lower price point to reach more consumers.² This model further developed into “ultrafast fashion,” a term coined for brands such as Shein, Missguided, Forever 21, and Boohoo, which entered the market by being even cheaper and faster alternatives to other fast fashion giants.³Fast fashion is extremely successful because it allows consumers to wear “high fashion” styles for a fraction of the price.⁴ This industry, like many others, benefited greatly from the rise of e-commerce which allowed consumers to access the hottest trends even more quickly⁵ and easily stay “in the know” with high fashion trends.⁶ This kind of instant gratification was a boon to the fast fashion industry, as interested consumers must continuously and cyclically purchase their products to keep up with the newest styles.⁷ Companies have profited immensely off of consumers’ desire for instant gratification and have utilized intellectual property laws (hereinafter “IP”) to benefit from the creations of other fashion designers.⁸ Because of this, luxury fashion houses and independent designers have fallen victim to “design piracy”, whereby thieves replicate others’ designs and sell them for a cheaper price.⁹ Recently, design piracy infiltrated the digital world by way of Web3 and the “Metaverse”, a virtual world that is based on technology of Web3.¹⁰ While Web3 and the Metaverse are controlled by existing IP laws, it is not yet clear how far creators’ rights extend or how they will be enforced in the fashion industry. ¹¹

This Note argues that current IP protections for fashion design are outdated and porous shields of design piracy. Part I surveys current IP laws and explores the challenges designers face in securing protections, as well as defining Web3. Part II explains the fashion industry’s impact on the Web3 platform, and how there is currently a gray space within IP protection in Web3. In particular, this part focuses on Nike v. StockX, a case that could substantially alter the future of fashion design in digital commerce. Part III describes how IP rights need to be strengthened in the real world and in Web3 to protect vulnerable designers whose work is exploited by design pirates. Part IV advocates for Congress to broaden the protections for fashion designs and to move away from the outdated view that fashion design is not worthy of the same protection as that afforded to works of art.

I. Background

While fashion design is admired by consumers, it has an “uncertain status” in intellectual property law.¹² Most fashion designs or brands seek protection under trademark, trade dress, patent, or copyright laws.¹³ However, fashion protection in IP is often referred to as a “doctrinal no man’s land.”¹⁴ Many design features are labeled as “functional”––meaning, the design is essential to the use or purpose of the garment, itself––which excludes that feature from copyright or trademark protection.¹⁵ Without this protection, the work of designers is easily exploited by big industries that profit off the mixture of fractured protection and a booming e-commerce industry.¹⁶

A. Understanding Intellectual Property Rights in the Fashion Industry

Trademarks are the most utilized form of IP in the fashion industry, as they are a brand’s “main ammunition” for protection against pirates.¹⁷ The basis for trademark protection is the Lanham Act of 1946 (“the Act”).¹⁸ The Act defines a trademark as a “word, symbol, or phrase, used to identify a particular manufacturer or seller’s products and distinguish them from the products of another.”¹⁹ Trademarks identify the source of goods or services and can be utilized to protect a company’s name, logos, slogans, and colors.²⁰ Brands usually have trademark protection for their fashion designs that bear logos, such as handbags.²¹ However, trademark protection only extends to the image of the logo and not necessarily to the entire handbag, because more often than not, the handbag, itself, would be considered functional and therefore not eligible for trademark.²² The functionality doctrine ensures that the features of a product that serve a useful purpose, such as how clothing covers a body or a blanket is used for warmth, cannot serve as a trademark because the goal of trademark law is to protect reputation rather than “to control a useful product feature.”²³ Since a functional feature is paramount to the success of a product, if companies could trademark such features it would likely result in a monopoly that could potentially be extended forever.²⁴

“Trade dress” is a subset of trademark law that can be employed to protect an aspect of a product that is “so recognizable that the average consumer associates it with the brand.”²⁵ It is the “commercial look and feel of a product or service that identifies and distinguishes the source of the product or service.”²⁶This includes “features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.”²⁷ Trade dress cases typically fall into two categories: those concerning a product’s packaging or labeling, and those concerning a product’s design.²⁸ The Supreme Court has held that design cannot be “inherently distinctive.”²⁹ meaning, a plaintiff must prove that the design has acquired distinctiveness through evidence of “secondary meaning”––that is, evidence that “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.”³⁰ Because secondary meaning is usually difficult to prove, it is not a route that most designers choose for design protection.³¹

Fashion designers can also apply for patent protection, which is embedded in the United States Constitution.³² Patents afford great protection and give “[the designer] the legal ability to stop others from making, using, or selling [a design] for a certain amount of time.”³³ In fashion design, having patent protection would incentivize the designer to invent new designs without fear of theft or that the design would be replicated.³⁴ To secure a patent, the design must be non-obvious, novel, and useful.³⁵ Designers mainly utilize patent law to protect the technical features of their designs, most notably the fabric.³⁶ However, obtaining a design patent is a rare, challenging, and time-consuming process.³⁷ Design patents are expensive and usually only available to well-established brands that can use patents as an investment for their staple pieces; therefore, they are typically not accessible to independent designers who cannot afford the cost of securing one.³⁸

Finally, fashion designers may seek protection under copyright law which, like patents, has constitutional origins.³⁹ Originally, much of what would now be considered “art” was not afforded copyright protection, as it was originally available only to books, maps, and charts.⁴⁰ Copyright protection steadily expanded and now covers a broad range of artistic expression such as: paintings, sculptures, photographs, textile patterns, and others.⁴¹ Surprisingly, copyright is the weakest strand of protection in fashion as it does not protect useful articles like “garments, dresses, shoes, [and] bags.”⁴² Copyright does protect the artistic components of designs––so long as it can be separated from the article of clothing––but that does not extend to common patterns, designs or arrangements.⁴³ In Star Athletica, LLC v. Varsity Brands, Inc., the Supreme Court held that a feature incorporated into the design of a useful article is eligible for copyright protection if: (1) the feature can be perceived as a work of art separate from the useful article, and (2) it would qualify as protectable on its own or when fixed in a different medium.⁴⁴ However, even with the decision from Star Athletica, the protection “is ineffective and . . . unsuited to the industry given the rise of fast-fashion.”⁴⁵ In theory, it seems that copyright would offer great protection for designers because it protects “original works of authorship fixed in any tangible medium of expression,” yet courts have consistently struggled to adopt a test that clearly interprets and applies this standard.⁴⁶

B. The Introduction of Web3: What Is It and Why Does It Matter?

Although the internet has been a constant presence in society for the last two decades, it has actually undergone multiple evolutions.⁴⁷ “Web1” was “the internet of the 1990s and early 2000s” which was limited in function and scope.⁴⁸“Web2”, the current generation of the internet, “refers to a paradigm shift in how the internet is used”⁴⁹ and is marked by the widespread focus on social media platforms and global connectivity.⁵⁰ Web2 is also known as an era of centralization, as companies produced immense wealth by “scraping users’ data and selling targeted ads against it.”⁵¹ Yet social media was not the only sector to benefit from Web2; the sharing economy, influencers, and e-commerce providers gained just as much value and revolutionized the money-making model.⁵² Finally, “Web3” refers to the next generation of the internet that, in stark contrast to Web2, “is a vision of a decentralized and open web with greater utility for users,” powered by cryptocurrencies and blockchain models.⁵³ Web3 is considered a major update to Web2, and it is characterized as a “reimagination of the sorts of things we already use the web for, but with a fundamentally different model for the interactions between parties.”⁵⁴ It is clear, at least in the fashion industry, that major fashion houses are aware of this new stream for revenue and are eager to see what potential Web3 holds.⁵⁵

Web3 is set to focus on privacy by employing encrypted digital wallets to process transactions and decentralized databases to store content.⁵⁶ One of the major innovations that blockchain has enabled is the democratization of ownership; for example, a company built on a blockchain foundation allows the creators to democratically govern the platforms and choose what to monetize.⁵⁷ Web3 also allows for more privacy because there will be less reliance on “advertising-based business models” which is a foundational aspect of Web2.⁵⁸ Users will have fewer targeted ads and tracking; and fewer companies taking their personal data every time they go onto a website.⁵⁹

Web3’s major selling point is communal ownership, which allows for users to monetize their own data.⁶⁰ Because Web3 operates on a blockchain and token system, by signing up for websites—such as social media—users will receive some of the site’s tokens, conferring a small stake in the website’s governance.⁶¹ This process is similar to stocks, so as a site gains popularity, ownership stakes will also appreciate in value.⁶² Web3 ultimately allows the people consuming the media to determine what they want to fund and support.⁶³

While Web3 has been in development for several years, it has only recently gained popularity.⁶⁴ Negativity and confusion surround Web3, but the same could have been said when Web2 came to the forefront.⁶⁵ The internet changed the way businesses operated and now “the advent of [W]eb3 signals a disruption to [the Web2] business model that tilts the scales in favor of creators.”⁶⁶ Major fashion houses are jumping at this new opportunity because they do not want to get left behind like others did with Web2.⁶⁷

C. Intellectual Property Rights Intersecting with NFTs

Recognizing NFT ownership on Web3 requires an understanding of how IP fits into the ownership.⁶⁸ Patent protection can be used to protect the underlying crypto or blockchain inventions.⁶⁹ Patent owners can therefore tokenize their patents and generate more revenue through the buying and selling of the patent.⁷⁰ The blockchains also allow for easy tracing of patent ownerships and subsequent ownership changes.⁷¹ Once an NFT is purchased, the owner is not in control of the copyright: the ownership and rights that go along with copyright, still lie with the creator.⁷² The creator may however give licenses to an NFT purchaser so that they can commercially use the NFT.⁷³An NFT can also be trademarked to ensure that no one else can use the name or logo for their NFT.⁷⁴ Existing trademark owners will have to update filings to apply for protection for “digital assets, crypto-assets, and virtual goods.”⁷⁵ Trademark is one of the best ways to protect an NFT, so long as the logo or name is in the NFT; however, this leads to a wrinkle in the fashion realm, as many clothing designs do not have logos on them, and the clothing articles are typically unavailable to get protection in copyright or patent, leading to a legal gray space.⁷⁶

II.The Fashion Industry Has a Substantial Impact on Web3

Fashion has fully embraced Web3 technology, and one of the primary ways in which fashion brands are experimenting with Web3 is through NFTs.⁷⁷ NFTs can be any digital print (such as art, drawings, paintings, music, or even fashion design) to which a unique digital marker is assigned that proves authenticity and ownership.⁷⁸ Navigating the world of Web3 and NFTs can be challenging, especially as it pertains to understanding the complex details of IP rights and protections afforded to NFTs which are shrouded in confusion.⁷⁹

A. The Fashion Industry Is Investing Millions into Web3 and NFTs

The growing popularity of NFTs caught the attention of many fashion brands as a tool for monetization.⁸⁰ While fashion brands were not quick to adopt social media in Web2, they are now on the forefront of the digital world.⁸¹ Companies utilize the new technology to allow consumers to engulf themselves in a virtual world and curate their digital content.⁸² Major fashion brands are heavily investing in NFTs, with brands like Adidas selling $23 million worth of NFTs in a weekend.⁸³ Many other major fashion houses are also getting involved: Louis Vuitton, Gucci, and Burberry have all created NFTs and Web3 games promoting their fashion lines.⁸⁴ Further, over seventy brands participated in a Metaverse Fashion Week, and all the brands had NFTs for sale.⁸⁵ Luxury houses also now accept cryptocurrency as a form of payment and are funding fashion startups within Web3.⁸⁶ Among Nike, Gucci, Dolce & Gabbana, Adidas, and Tiffany, NFTs alone amassed a sales revenue of $260 million.⁸⁷

Web3 gives powerful opportunities for creators and designers to experiment with emerging technologies and their relation to fashion.⁸⁸ NFTs, for example, are a groundbreaking new way for brands to monetize their trademarks; however, there are instances popping up where trademarks are forged into NFTs.⁸⁹ NFT purchases convey ownership, but it can be unclear what rights are included as creators have the ability to determine what rights they want to convey.⁹⁰

In Web3, NFTs are usually one-off sales, meaning “victims of piracy are now finding themselves under pressure to not just find and remove pirate listings, but to do this quickly, before a sale is consummated.”⁹¹ While digital creators use the Digital Millennium Copyright Act (“DMCA”) to protect their work on Web2, there is not the same protection on Web3.⁹² The DMCA is known as “the basic structure of copyright protection,” with automated systems having a series of notice-and-takedown methods where a copyright owner can flag infringing content.⁹³ The lack of DMCA jurisdiction in Web3 includes an added wrinkle: while an infringing NFT can be taken down on Web2, it remains undisturbed on a Web3 blockchain.⁹⁴

B. When It Comes to Web3, There Are Still Novel Issues in IP That Need to Be Answered

Novel issues such as infringement, licensing, and price disparity have yet to be answered regarding NFTs.⁹⁵ The lack of clarity makes it “increasingly difficult for companies to innovate and protect their rights in the digital world;” and guidance regarding IP rights within emerging technologies is necessary to lay the framework for creators to develop new creative innovations.⁹⁶

In a case of first impression, Nike v. StockX brought questions arising from the intersection of IP rights and Web3 to the forefront.⁹⁷ Among other things, the case concerned an alleged trademark infringement on NFTs that StockX was selling.⁹⁸ Nike is the world’s largest athletic apparel company; StockX is a company that resells “streetwear,” mainly sneakers, apparel, and accessories, and is known primarily for being a resale outlet where one can buy limited edition apparel or sneakers that have already sold out at retailers, but at a steep price.⁹⁹ Nike alleged that “without Nike’s authorization or approval, StockX is ‘minting’ NFTs that prominently use Nike’s trademarks, marketing those NFTs using Nike’s goodwill, and selling those NFTs at heavily inflated prices to unsuspecting consumers” who are likely to believe that the digital assets are authorized by Nike when they are not.¹⁰⁰ Nike also alleged that goods tied to the NFTs are counterfeit after the company purchased numerous “pairs of fake Air Jordan 1 Retro High OGs” from the StockX Vault NFT collection.¹⁰¹

The case shows that there is a lack of clarity regarding the boundaries of NFTs and trademarks.¹⁰² Further, this is the first instance in which a company without trademark ownership used a particular trademark while claiming that the NFT was “100% authentic,” even though the owner had not authenticated it.¹⁰³ Companies that exploit brand names in blockchain domains or when minting NFTs “can create consumer confusion and may result in the loss of crypto assets,” all while reaping the substantial profits at the expense of unsuspecting customers who act in good faith.¹⁰⁴ The confusion is further compounded as the interconnectivity between NFTs and physical products, and Web3 and the metaverse is blurred.¹⁰⁵ Nike v. StockX is currently under seal and is progressing through discovery, yet, this case has the potential to define the future creation and usage of NFTs while establishing a precedent in the relationship between IP rights and NFTs.¹⁰⁶

Analysis

Fashion design is afforded virtually no protection compared to all other forms of creativity, as the courts have never seen it as art.¹⁰⁷ When it comes to increasing protection, it is argued, among other things, that the status quo does not need to be altered.¹⁰⁸ However, as Web3 gains popularity and technology advances, designers face negative impacts.¹⁰⁹ Designers no longer have an advantage of lead time, as artificial intelligence can take a design off the runway and create copies for sale within hours.¹¹⁰ Designers are suffering immensely with the lack of adequate IP protections; Congress is in a unique position to remedy the problem, but it has not.¹¹¹ Passing an act such as the Innovative Design Protection Act (“IDPA”) with limited protection for fashion design would give much needed protection for designers and ensure that their works are not being consistently pirated.¹¹²

III. Current IP Rights Fail to Protect Fashion Designers from Piracy

Current IP protections in both the real world and Web3 are defective.¹¹³ Big fashion houses and independent designers are constantly having their new designs and hard work stolen by fast fashion companies.¹¹⁴ In return, fast fashion companies profit substantially off of the hard work of designers.¹¹⁵Unfortunately, independent designers may not be able to recover financially from the piracy, and it ruins the launch of fashion houses’ new collections.¹¹⁶ This issue has the potential to be exacerbated in Web3 through NFTs, as they are sold quickly, anonymously, and often for large sums of money.¹¹⁷ While Nike v. StockX further exemplifies how a company can profit off another’s trademarks, its implications are far reaching as it can set precedent for the future of design piracy in the new era of technology.¹¹⁸

A. Design Piracy Is a Pandemic Affecting Every Facet of Fashion Design

Design piracy is defined as “taking somebody’s design [and] replicating it quickly,” so that only an expert could tell the difference between the pirated work and the original.¹¹⁹ Fashion design piracy greatly harms the industry because, among other things, it removes the incentive for designers to create original pieces and creates an unfair environment to the disservice of the designers.¹²⁰ Yet some scholars argue that design piracy actually helps the industry economically, and that designers should celebrate that their works are being knocked off.¹²¹ However, piracy is most detrimental to young designers who are just starting their career and cannot afford to have their designs stolen.¹²² This problem is exacerbated as Generation Z (“Gen Z”) consumers have shifted away from the once faux pas of buying pirated goods.¹²³ In fact, many consumers actually seek out counterfeit goods because of the cheaper price, and are willing to forego quality for the status afforded by wearing designer brands.¹²⁴ Further, it turns out that Gen Z does not see the moral issues that arise from owning counterfeit goods—as seen from the shameless hauls on TikTok.¹²⁵ The increase in consumers reaching for counterfeit goods could swiftly destroy a young career in a single season, especially when the designer is being ripped off by a major fast fashion company.¹²⁶

Piracy is not limited to real life designs; it has also quickly infiltrated Web3.¹²⁷ It is easy for pirates to “mint knockoff NFTs with nothing more than a digital file and some cryptocurrency, then sell those knockoffs to unsuspecting collectors” because these designs usually lack IP protection.¹²⁸ Piracy is arguably worse in Web3 because knockoff NFTs are exact copies of the original.¹²⁹ Further, the DMCA lacks protection because NFTs are usually stored on servers that promote anonymity and facilitate sales quickly, which makes it difficult to catch perpetrators before a sale is finalized.¹³⁰ Congress has not updated the DMCA since before NFTs existed, and with the growing popularity of Web3 and NFTs, it no longer provides adequate protection for creators operating in that realm.¹³¹

As noted, some academics believe that the lack of protections given to designers is beneficial for the economy and the fashion industry.¹³² This belief, coined the “piracy paradox,” claims that designers actually profit off their stolen designs through a boosted economy.¹³³ However, the piracy paradox only allows fast fashion brands to flourish, while forcing designers to continuously work on creating new designs that will inevitably get stolen.¹³⁴ Proponents argue that knockoffs are not damaging fashion houses—as evidenced by the fact that the luxury fashion sector still enjoys healthy sales.¹³⁵ Despite a brand continuing to make profits, there is a moral argument that the designers who are behind the work are essentially being plagiarized while others reap the benefits.¹³⁶ Fashion design should be seen as “an extension of a designer’s creative soul, and thus deserves some form of protection.”¹³⁷ It is unfortunate that Congress has not provided protection for a form of art that is treated radically different from other art forms in the U.S.¹³⁸

With the influx of designers moving to the new e-commerce medium, further economic excuses will develop as to why individuals’ designs are allowed to be stolen.¹³⁹Design piracy is already wiping out independent designers and creators.¹⁴⁰ As fashion designers are increasingly hosting fashion weeks on Web3 to showcase groundbreaking designs through the use of new technology, it could just be another medium for design theft.¹⁴¹ The current decades-old laws do not afford protection for designers to flourish without the growing threat of losing all their hard work to a pirate.¹⁴² America has transitioned from “a nation of manufacturers” to a nation of designers and creators, and it is time that the laws are updated to accept this shift.¹⁴³

B. Proactive Efforts Are Needed to Combat Design Piracy in Web3

NFTs were originally created to function as “a security or investment, without any connection to a tangible or physical product”¹⁴⁴ that verify the authenticity of digital goods.¹⁴⁵ Nike, like so many other fashion companies, has heavily invested in virtual goods and NFTs of its own, and has been involved in digital art for years.¹⁴⁶ Usually, when consumers seek out NFTs with a trademarked logo on it, they are expecting that the NFT is backed by the trademark holder.¹⁴⁷ The Nike trademarks on the StockX NFTs would usually indicate to the consumer that they are buying a Nike NFT, thus creating consumer confusion because there was a false belief that Nike licensed or had any affiliation with the NFT.¹⁴⁸

Consumers also assume that because an NFT has a Nike trademark, if they trade in the NFT for the actual shoe, then they would receive an authentic Nike shoe.¹⁴⁹ Yet a vast amount of products from the StockX NFT Vault were actually counterfeit goods.¹⁵⁰ Allowing StockX to sell NFTs backed by counterfeit sneakers tarnishes Nike’s reputation—especially when a consumer is misled to believe that the shoes are connected to Nike’s own collection of NFTs or line of physical goods.¹⁵¹ A consumer would therefore be conned twice: once when they obtained a NFT they believed to be backed by Nike, and again when they trade it in and potentially receive a counterfeit product.¹⁵² Unfortunately, StockX is ruining consumer confidence in Nike’s brand by selling such a vast amount of knockoffs.¹⁵³ The NFTs that StockX is selling are very expensive, and it is ultimately the consumers that run the risk of being duped, yet so far StockX has not been held accountable for their deceptive actions.¹⁵⁴

Many fashion companies use NFTs as a means to certify authenticity of a product and mitigate the risk of counterfeit goods; however, without proper protections in place for NFT creation, the opposite occurs and pirates are able to sell inauthentic NFTs.¹⁵⁵ Nike v. StockX has the potential to set a precedent that ensures companies and creators are provided with protection over their trademarks and NFTs so that consumers will not be erroneously conned into spending an exorbitant amount of money on NFTs that are not backed by the trademark holder.¹⁵⁶Without such clarity, it will be difficult for companies to navigate IP protections in an increasingly digital world.¹⁵⁷

IV. The United States Must Implement New Measures to Protect Fashion Designers

Congress presented the IDPA in 2012 to expand copyright protection to fashion articles.¹⁵⁸ The bill was never enacted into law with the criticisms of many contributing to its failure.¹⁵⁹ Congress has always seemed hostile towards awarding more protection to fashion designers.¹⁶⁰ Unfortunately, Congress fails to see the artistic nature of fashion, nor does it believe that fashion deserves some form of protection.¹⁶¹

A. The Absence of IP Protection Stifles Creativity for Designers

Current IP laws discourage creativity in fashion while promoting consumers’ fixation on the status symbols attendant to brands and logos rather than the beauty of designs.¹⁶² Fashion houses expanded their product lines to the Metaverse and Web3 where consumers can buy clothing or NFTs for their digital avatars.¹⁶³ In real life and in Web3, brands are now careful with their clothing articles and accessories by pushing logo heavy garments on the consumer.¹⁶⁴ Fashion designers who have business models focused on “logo-fication may result in [a] further proliferation of handbags with prominent identifiers and fewer types of uniquely tailored clothing.”¹⁶⁵Even iconic bag styles are not afforded protection—it is rather the logo affixed on the bag that is protected.¹⁶⁶ The use of repeated logos is typically more of a strategic choice than an aesthetic one; companies continuously promote heavily logoed items to the consumer to make it more difficult to separate the protected logo from the unprotected product.¹⁶⁷ Burberry and Valentino, among numerous other high fashion houses, have even refreshed their vintage styles by bringing logo covered bags and clothes back to the forefront.¹⁶⁸ Unfortunately, this strategic decision ultimately stifles creativity of designers.¹⁶⁹

Designers in fashion houses face extreme difficulty in having their creative designs protected because when arguing consumer confusion they must show that the trademark has “obtained significant recognition of its uniqueness.”¹⁷⁰ This actually inadvertently suppresses competition, which is in direct conflict with one of the main goals of the Lanham Act.¹⁷¹ The lack of creativity is apparent when looking at the storefront of major fashion houses in the Metaverse.¹⁷² Designers are forced to create items that predominantly feature trademarks on the products for fear that more creative endeavors will be pirated.¹⁷³ While designers are able to protect their trademarks, the scope of protection is limited to that specific trademark; as a result, many designers rely solely on this form of protection when creating their designs, leading to a repetitive and unexciting product line.¹⁷⁴ Designers are making the absence of IP protections a trend, unfortunately, to the detriment of creativity.¹⁷⁵

B. The U.S. Should Support New Legislation for Design Protection

The current IP protections for fashion design are extremely antiquated.¹⁷⁶ Academics, professionals, and politicians have all agreed that updated protection is needed, as fashion design is “excluded under the ‘useful articles’ doctrine.”¹⁷⁷ But clothing design is truly artistic, and if a brand creates a creative and artistic design, it should be afforded protection so the designer does not have to worry about the risk of piracy.¹⁷⁸ Fashion designers see their creation as art and demonstrate their final product through fashion shows to showcase their creativity.¹⁷⁹ Web3 is revolutionizing fashion design even more.¹⁸⁰ Designers can use the technology Web3 offers to experiment and simulate virtual designs before making them in real life.¹⁸¹ Consumers on Web3 can even buy NFT clothes that can be fitted through artificial intelligence, which is another area that raises the issue of design piracy.¹⁸² Therefore, all IP issues that fashion designers currently face in the real world could transfer over to Web3; for NFTs specifically, this could mean that consumers unknowingly purchase knockoffs.¹⁸³ Unlike real world purchases, where many justify the purchase of knockoffs as a means of saving consumer money, NFTs are typically more expensive and pose unique risks in exploiting consumers.¹⁸⁴ The impending lack of protection would further exploit fashion designers and allow others to take advantage of their hard work.¹⁸⁵

While Congress has debated multiple bills that would afford greater protection to fashion designers and consumers, most of them have failed.¹⁸⁶ The IDPA was the most recent bill that failed.¹⁸⁷ However, there were many beneficial aspects of the bill, including two main components: incentivizing creators by giving them exclusive rights and making rights limited enough so the public can still use the creative works, while also balancing the protections against each other.¹⁸⁸ The bill had a three-year period of protection because fashion moves so quickly that the usual copyright protection is too long.¹⁸⁹ Three years adequately allows for old designs to reinspire new trends, which is a prevailing part of fashion.¹⁹⁰

Further, critics argue the “substantially identical” standard noted in the IDPA is seen as inapplicable in the fashion industry.¹⁹¹ However, it required infringing articles to be “so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.”¹⁹² Therefore, it would not prohibit designs that are inspired by others; rather, it prohibits designs where it is clear that another brand attempted to replicate it.¹⁹³ While many argue that it would be too complicated to determine line-by-line knockoffs versus inspirations, this argument has little merit.¹⁹⁴ For example, Coperni’s spray painted dress on Bella Hadid at Paris Fashion Week 2022 is something that one would easily recognize if seen on a fast fashion website, as it is automatically distinguishable.¹⁹⁵ In contrast, the platform Valentino heel would not be afforded protection because it is a design that has been seen time and time again.¹⁹⁶ Granted, Valentino made a few modifications, but the shoe is something that can also be found on Amazon or Zara.¹⁹⁷ Line-by-line knockoffs damage designers’ reputations because it associates their designs with lower price points and cheaper materials.¹⁹⁸ Enacting legislation such as the IDPA could serve as a safeguard for designers to prevent knockoffs from tarnishing their reputations.¹⁹⁹

Congress refused to pass protective legislation for fashion design, primarily because it wants to promote competition in the industry and does not want to create a monopoly.²⁰⁰ The economic argument falls apart when it is compared with copyright of other art forms that “have been motivated by changes in copying technology.”²⁰¹ Congress needs to update the laws to adhere to this change in technology, especially now that pirates can take a photo of an outfit on a runway and create a rendition of it on an avatar in the Metaverse.²⁰²

The goal of stricter regulations is not to protect the cobalt blues or florals.²⁰³ It is instead to protect a brand and designer’s identity.²⁰⁴ Protection is necessary when it is commonplace for independent designers to have their designs stolen by major fast fashion corporations to be sold at a fraction of the price.²⁰⁵ With the prevalence of technology, it is a swift process for companies to analyze photos from fashion shows and create copies of the clothing before the original can even become available for purchase.²⁰⁶ It is even easier to replicate in the Metaverse because a copy can be minted in minutes and pirated for avatar use.²⁰⁷ Current U.S. laws still need significant updates to give fashion designers the protection they deserve.²⁰⁸ With Web3 becoming the new forum for creativity and design, Congress must address the inadequate protections currently provided to designers.²⁰⁹

Conclusion

The legislature and judiciary consistently overlook and unjustly treat fashion design. The prevailing argument that fashion is not art is tantamount to stating that a Giacometti sculpture or painting is akin to a clothing rack. Those who claim fashion is not art have never appreciated works of haute couture—which museums often showcase—nor have they seen a fashion show in Italy or witnessed collaborations between fashion designers and artists. The courts are misguided in judging fashion as utilitarian. Art is much more than what can be depicted on a canvas. Rather, it can be, and often is, conveyed through clothing as well. Designers carry out expression and art through their collections. Yet the law turns a blind eye by allowing fast fashion companies to take exact designs and sell them before the original designers can even commence production. Congress had the solution but failed to act. Its failure is detrimental to an entire industry and has potentially devastating results. Furthermore, Web3’s growth and all the uncertainty surrounding it will only further exacerbate this vulnerability. Investing millions into Web3 is a shrewd move by the fashion industry and is likely to pay off, but the lack of clarity on bright-line rules and case law surrounding IP in Web3 is alarming. Dramatic change is necessary for the protection of fashion designers, and it is imperative that Congress acknowledges its shortcomings and acts.

1
Eleanor Rockett, Trashion: An Analysis of Intellectual Property Protection for the Fast Fashion Industry, 11 Plymouth L. & Crim. Just. Rev. 80, 80 (2019); John Zarocostas, The Role of IP Rights in the Fashion Business: A US Perspective, WIPO (Aug. 2018), https://perma.cc/8VXL-LGPJ.
2
SANVT Journal, The Meaning & History of Fast Fashion, SANVT (May 9, 2022), https://perma.cc/Q6VZ-3XE8 [hereinafter SANVT].
3
Solene Rauturier, What Is Fast Fashion and Why Is It So Bad?, Good On You (Aug. 7, 2023), https://perma.cc/4MUQ-JFRZ.
4
See SANVT, supra note 2.
5
Instant Gratification: Today’s Consumer Needs It and It’s Transforming the Fashion Industry, Lectra (Aug. 12, 2019), https://perma.cc/HB6U-6GXU.
6
Id.
7
Id.
8
See Vendela Dente, Note, Fashion Design Piracy: An Issue of Intellectual Property or Economic Impact?, 2 Fordham Undergraduate L. Rev. 25, 26 (2020).
9
Cassandra Elrod, Note, The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability, 14 Ind. J. Glob. Legal Stud. 575, 578 (2017).
10
See generally Bernard Marr, The Important Difference Between Web3 and the Metaverse, Forbes (Feb. 22, 2022, 2:06 AM EST), https://perma.cc/ZQ78-CLLQ; Francelina M. Perdomo, Protecting Fashion in the Metaverse, N.Y. L.J. (Aug. 26, 2022, 2:00 PM), https://perma.cc/RUK5-2GAH.
11
Perdomo, supra note 10.
12
Christopher Buccafusco & Jeanne C. Fromer, Fashion’s Function in Intellectual Property Law, 93 Notre Dame L. Rev. 51, 52 (2017).
13
Zarocostas, supra note 1; Julie Zerbo, Protecting Fashion Designs: Not Only “What?” but “Who?”, 6 Am. U. Bus. L. Rev. 595, 596 (2017).
14
Elizabeth L. Rosenblatt, A Theory of IP’s Negative Space, 34 Column. J.L. & Arts 317, 325 (2011).
15
Buccafusco & Fromer, supra note 12, at 52.
16
Chavie Lieber, Fashion Brands Steal Design Ideas All the Time. And It’s Completely Legal., Vox (Apr. 27, 2018, 7:30 AM EDT), https://perma.cc/24GH-4KU3; Rosenblatt, supra note 14, at 341.
17
Ezra Marcus, The Off-White Papers: Inside Virgil Abloh’s Trademark Ballet, N.Y. Times (Apr. 21, 2021), https://perma.cc/SB4R-ZQ8J; see Zarocostas, supra note 1.
18
Lanham Act: Everything You Need to Know, UpCounsel, https://perma.cc/7AYA-EFA8 (last updated January 1, 2024).
19
15 U.S.C. § 1127; Overview of Trademark Law, Harv., https://perma.cc/88VQ-UKKT (last visited Mar. 14, 2024).
20
What Is a Trademark?, U.S. Pat. and Trademark Off., https://perma.cc/TEF7-SU3K (last modified Jul. 18, 2023)
21
See Nicole Giambarrese, Comment, The Look for Less: A Survey of Intellectual Property Protections in the Fashion Industry, 26 Touro L. Rev. 243, 245 (2010).
22
See generally Elrod, supra note 9, at 584.
23
Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164–65 (1995).
24
Id.
25
Lieber, supra note 16.
26
Trade Dress Under the Law, Justia, https://perma.cc/V9TG-EAK2 (last reviewed Oct. 2023)
27
Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n.1 (1992).
28
Yellowfin Yachts, Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1288 (11th Cir. 2018).
29
Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 212 (2000).
30
Id. at 211 (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851, n. 11 (1982)).
31
See Patrick J. Concannon, Fashion and Intellectual Property: Many Options to Protect Your Design, but No One-Stop Shop, Nutter (May 30, 2017), https://perma.cc/VB84-PLCH; James M. Hanifin Jr., Protecting the Look of a Product: Design Patents vs. Trade Dress, Wolf Greenfield (Feb. 1, 2019), https://perma.cc/Q433-DJYN.
32
U.S. Const. art. I, § 8 (“Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”).
33
Patent Law: Everything You Need to Know, UpCounsel, https://perma.cc/EQ5P-9AZZ (last updated Feb. 1, 2023); see 35 U.S.C. § 171.
34
See Patent Essentials, U.S. Pat. & Trademark Off., https://perma.cc/H62L-JZ4M (last updated May 2, 2023, 2:13 PM EDT).
35
35 U.S.C. §§ 101–103 (defining non-obvious as “if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.”).
36
Lieber, supra note 16; see also Mari-Elise Paul, Lululemon a Warrior in Protecting Its Intellectual Property, Stites & Harbison PLLC (Sept. 15, 2014), https://perma.cc/DWA8-2PEU (“Lululemon currently has a portfolio of thirty-one patents, most of which are design patents.”).
37
Giambarrese, supra note 21, at 250; Lauren Indvik, Why Patent-Holding Designs Still Get Knocked Off: A Case Study with Alexander Wang, Fashionista, https://perma.cc/7RUG-V6NK (“[Patents] can take anywhere between eight to 20 months to obtain from the U.S. Patent & Trademark Office, thus rendering them largely impractical for the fashion industry, where a fashion season cycles through in a matter of months.”) (last updated Apr. 11, 2014).
38
See Zarocostas, supra note 1.
39
U.S. Const. art. I, § 8; Zaracostas, supra note 1.
40
The 18th Century, U.S. Copy. Off., https://perma.cc/V8AP-CH7J (last visited Mar. 14, 2024).
41
See A Brief History of Copyright in the United States, U.S. Copyright Off., https://perma.cc/GS8D-37JF (last visited Mar. 15, 2024).
42
Aisha Rutherford, Making American Fashion Great Again – Does the Law Need Reform? An Enquiry into the State of Intellectual Property Rights in American Fashion Law, 6 Durham L. Rev. 1. 8 (2021); Zarocostas, supra note 1.
43
See Rachel Kim, How is Fashion Protected by Copyright Law?, Copyright All. (Feb. 10, 2022), https://perma.cc/5LTT-95NR.
44
580 U.S. 405, 409 (2017).
45
Rutherford, supra note 42, at 8.
46
17 U.S.C § 102; see Kshithija Mulam, Intellectual Property Implications of Star Athletica v. Varsity Brands, Colum. Undergraduate L. Rev. (Apr. 15, 2019), https://perma.cc/8TWT-F95R.
47
The Investopedia Team, Web 3.0 Explained, Plus the History of Web 1.0 and 2.0, Investopedia, https://perma.cc/HXP9-P85T (last modified Mar. 11, 2024).
48
Kevin Roose, The Latecomer’s Guide to Crypto: What is Web3?, N.Y. Times (Mar. 18, 2022), https://perma.cc/2H65-C3ZG.
49
The Investopedia Team, supra note 47.
50
Thomas Stackpole, What Is Web3?, Lectra Harv. Bus. Rev. (May 10, 2022), https://perma.cc/3PUZ-3QQZ; Paul Wackerow et al., Web2 vs Web3, Ethereum, https://perma.cc/D2PF-8B8M (last modified Aug. 15, 2023).
51
Stackpole, supra note 50.
52
Stackpole, supra note 50.
53
The Investopedia Team, supra note 47.
54
Stackpole, supra note 50.
55
See Oscar Holland, Luxury Fashion Houses are Funneling Millions into the Metaverse. But to What End?, CNN, https://perma.cc/J9PF-P3KA (last updated Sept. 8, 2022, 9:06 AM EDT).
56
Wackerow, supra note 50. Data is stored through blockchain, which is an anonymous ledger system used for a variety of functions in Web3, such as creating websites or non-fungible tokens (“NFTs”).⁵⁶ See Emily Behzadi, The Fiction of NFTs and Copyright Infringement, 170 U. Pa. L. Rev. Online 1, 1 (2022), https://perma.cc/FL63-43FN; Mitchell Clark, NFTs, Explained, The Verge, https://perma.cc/DL42-PRJR (last updated June 6, 2022, 8:30 AM EDT).
57
See Roose, supra note 48.
58
Roose, supra note 48; Matt Robles, Web3 and NFTs: What Does the Metaverse Mean for Ads?, Spiceworks (Mar. 4, 2022), https://perma.cc/7AYJ-DG44.
59
See Robles, supra note 59.
60
Matt Levine, There’s Inside Information in SEC Filings, Bloomberg (Dec. 21, 2021, 12:25 PM EST), https://perma.cc/6WJR-ZWUX.
61
Id.
62
Id.
63
Id.
64
Roose, supra note 48.
65
See generally Li Jin & Katie Parrott, The Web3 Renaissance: A Golden Age for Content, Li’s Newsletter (Dec. 20, 2021), https://perma.cc/GM9P-JN83.
66
Id.
67
See Holland, supra note 55.
68
Michael Kondoudis, NFTs and Trademarks: The Ultimate Guide, Law Office of Michael E. Kondoudis, https://perma.cc/B8VJ-MM4T (last visited May 1, 2024).
69
Id.
70
Seyed Majtaba Hossenini Bamakan, et al., Patents and Intellectual Property Assets as Non-Fungible Tokens; Key Technologies and Challenges 12 Scientific Reports 2178 at 2 (2022).
71
Id.
72
Alex Macura, NFTs & Copyright: What Do You Own?, Search Engine J. (May 19, 2023), https://perma.cc/B3KR-P792.
73
Id.
74
Kondoudis, supra note 69.
75
Kondoudis, supra note 69.
76
See Kondoudis, supra note 69.
77
See Perdomo, supra note 10; Madeleine Schulz, 2022: A Year of Fashion NFTs, Vogue Bus. (Dec. 20, 2022), https://perma.cc/YVX4-XSZH.
78
Clark, supra note 57; What Are NFTs and How Do They Work?, Kaspersky, https://perma.cc/6SU3-CTTV (last visited Mar. 15, 2024).
79
See Micah Kindred, NFTs and Intellectual Property Rights: What We Know and What Is Coming, Cin. L. Rev. (Jan. 18, 2023), https://perma.cc/Q6KF-HXB6.
80
See Oleksandra Baukh, What Is Fashion NFT and How Brands Are Capitalizing on It?, Tech Packer (Sept. 6, 2022), https://perma.cc/54SD-C5V6.
81
See, e.g., Yanie Durocher, NFTs: The Fashion Industry’s Future Baby, Forbes (Oct. 18, 2022, 7:00 AM EDT), https://perma.cc/M8R6-CCKT (explaining how designers and influencers will be able to reach an entire new level of creators through Web3); Holland, supra note 55.
82
Baukh, supra note 81.
83
Mat Smith, The Morning After: Adidas’ First NFT Drop Made $23 Million, Engadget (Dec. 20, 2021), https://perma.cc/SS97-JB5K.
84
Mikahila Bloomfield, How Web3 Could Change the Fashion Industry, Fashion League, https://perma.cc/WU83-D5ZA (last visited Mar. 15, 2024).
85
Id.
86
World Fashion Exch., Web3 Fashion: How Web 3.0 Will Redefine the Fashion Industry, LinkedIn (Sept. 21, 2022), https://perma.cc/DL7Q-E7JP.
87
Id.
88
Zarin Akhtar, What is Web 3.0? What Web3 Means for the Fashion Industry, World Fashion Exch. (June 2, 2023), https://perma.cc/JX7Y-AHQW; Kristen Logan, Fashion Meets Web3–Protecting Emerging Phygital Fashion Innovations, JD Supra (Nov. 7, 2022), https://perma.cc/FU6X-ARHH.
89
See, e.g., Elizabeth D. Ferrill et al., Demystifying NFTs and Intellectual Property: What You Need to Know, Finnegan (May 10, 2022), https://perma.cc/6B2Q-EPD6; Kindred, supra note 80.
90
See Ferrill et al., supra note 90 (“Jack Dorsey sold an NFT of his first ever tweet for nearly $3 million. The owner of the NFT did not gain intellectual property rights in the tweet itself . . . because Dorsey still owns the copyright.”).
91
Peter Cramer & David Munkittrick, Will NFT Piracy Compel Changes to the Digital Millennium Copyright Act?, JD Supra (Mar. 16, 2022), https://perma.cc/5UET-NNNQ.
92
Id.
93
Id.
94
Id.
95
Benjamin Stasa, Nike v. StockX Case Highlights Many Unanswered Questions About IP and NFTs, JD Supra (Sept. 7, 2022), https://perma.cc/AG63-3EL8.
96
Id.; Jaci McDole et al., IP and the Metaverse: The Challenges of Protecting Trade Dress and Design Patent Rights in the Metaverse, Info. Tech. & Innovation Found (Dec. 1, 2022), https://perma.cc/5AX4-WPGN.
97
Jeremy Torres, Nike v. StockX: A Full Breakdown of the NFT Lawsuit That Will Create Legal Precedent, U. Buff. L. Sports & Ent. Forum (Feb. 24, 2022), https://perma.cc/X5GL-6VGR.
98
Id.
99
Id. (“The Dior x Air Jordan 1 Low (2020) (limited to 4,700 pairs) retailed for $2,000.00, however when sold on StockX, the sneaker typically sells for over $6,500.00.”). See generally The Current Culture Marketplace, StockX, https://perma.cc/K6BL-55HG (last visited Mar. 16, 2024); D. Tighe, Nike – Statistics & Facts, Statista https://perma.cc/VL3U-W3BT (last updated Feb. 28, 2024).
100
First Amended Complaint ¶ 5, Nike Inc. v. StockX LLC, No. 22-cv-00983 (S.D.N.Y. May 25, 2022), ECF No. 39, 2022 WL 20289526; Richard Gottleber, How to Mint an NFT, Chainlink, https://perma.cc/7WCV-TG38 (last updated Jan. 10, 2023) (“Minting an NFT means creating a unique token on a blockchain.”).
101
Andrew Rossow, The Nike v. StockX Lawsuit Could Determine What Type of NFTs Can Be Created, NFT Now (May 26, 2022), https://perma.cc/892U-9ZYQ.
102
Anita Gogia, What Legal Lines Can’t NFTs Cross? The Nike v. StockX Lawsuit May Provide Answers, IP Osgoode (June 21, 2022), https://perma.cc/2BEU-XLFE.
103
Michelle Mancino Marsh et al., Non-Fungible Trademark Infringement or Nominative Fair Use Token? Nike v. StockX Duel Is on Pace to Shape the Future of the Metaverse, Nat’l L. Rev. (Apr. 21, 2022), https://perma.cc/G4JT-9G6L.
104
Sarah Bro & Joshua Revilla, How the Metaverse and NFTs Might Impact IP Protection in 2023, World Trademark Rev. (Mar. 16, 2023), https://perma.cc/Y3WE-B8G8.
105
Mary Kate Brennan et. al., Nike’s Trademark Fight Against StockX Moves Offline, IP WatchDog (May 18, 2022 1:54 PM), https://perma.cc/8VJS-7R6H.
106
Fantastic Mind, Why Is the Nike v. StockX Lawsuit Pivotal for the Future of NFT Creation?, LinkedIn (June 10, 2022), https://perma.cc/B45J-5XNK.
107
See Rockett, supra note 1, at 82.
108
Katelyn N. Andrews, The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right, 2 N.Y.U. J. Intel. Prop. & Ent. L. 188, 192–94 (2012).
109
See Kasey Boucher Pierter & Shannon Vittengl, IP Rights in Virtual Fashion: Lessons Learned in 2022 and Unanswered Questions, JD Supra (Jan. 11, 2023), https://perma.cc/HN76-2CFZ; Valentina Mazza, NFTs Meet Fashion: It’s a Battleground for Law, Istituto Marangoni, https://perma.cc/YYU3-UVDH (last visited Mar. 8, 2024).
110
See Rockett, supra note 1, at 81
111
See Dente, supra note 8, at 26; Lisa J. Hedrick, Note, Tearing Fashion Design Protection Apart at the Seams, 65 Wash. & Lee L. Rev. 215, 221 (2008).
112
See Keyon Lo, Stop Glorifying Fashion Piracy: It is Time to Enact the Innovative Design Protection Act, 21 Chi.-Kent J. Intell. Prop. 159, 208 (2021).
113
See id. at 166.
114
Compare Marcus, supra note 17 (investigating the sheer ease and volume that sellers list products which infringe on Off-White trademarks), with Dan Strumpf, China’s Fast-Fashion Giant Shein Faces Dozens of Lawsuits Alleging Design Theft, Wall St. J. (July 3, 2022, 5:30 AM ET), https://perma.cc/85V4-L8AZ (scrutinizing Shein for how frequently the company is accused of stealing designs from independent designers).
115
Bashirat Oladele, Small Designers Fall Victim to Larger Brands Stealing Their Designs, The Boar (Aug. 18, 2020), https://perma.cc/T9QZ-GQYG.
116
Id.
117
See, e.g., Mikaela Cohen, ‘I Kind of Freaked Out’: This 42-Year-Old Artist Made Over $738k in 32 Minutes Selling NFTs, CNBC, https://perma.cc/DBL2-LA9U (last updated Dec. 15, 2022, 9:57 AM EST).
118
See generally Peter Cramer & Brendan O’Rourke, As NFTs Blur the Line Between “Receipt” and “Product,” Trademarks Owners Fight Over New Virtual Markets, JD Supra (Apr. 12, 2022), https://perma.cc/X89Z-JSBD (explaining how StockX sells NFTs with the trademarked Nike swoosh).
119
A Bill to Provide Protection for Fashion Design: Hearing on H.R. 5055 Before the Subcomm. on Cts., the Internet, and Intell. Prop. of the Comm. on the Judiciary, 109th Cong. (2006), https://perma.cc/J67Y-BU59 [hereinafter Protection for Fashion Design].
120
See Id.
121
See Kari Heyison, Comment, If It’s Not Ripped, Why Sew It? An Analysis of Why Enhanced Intellectual Property Protection for Fashion Design Is in Poor Taste, 28 Touro L. Rev.he Boar 255, 274 (2012).
122
See Lieber, supra note 16.
123
Alexandra Pauly, For Gen Z, Buying Fake Fashion Is No Longer a Faux Pas, Highsnobiety, https://perma.cc/5DLX-MMYH (last visited Mar. 17, 2024) (explaining a study done in the European Union that found 52% of respondents have bought at least one counterfeit good online within the last twelve months).
124
Id.; Richard Carufel, New Global Counterfeit-Product Study Puts Gen Z’s Moral Compass to the Test, Agility PR Sols.T (May 31, 2019), https://perma.cc/3DUK-6WRY.
125
See Carufel, supra note 125.
126
See Lieber, supra note 16.
127
Cramer & Munkittrick, supra note 92.
128
Cramer & Munkittrick, supra note 92.
129
See Cramer & Munkittrick, supra note 92.
130
Cramer & Munkittrick, supra note 92; Amit Khanna, Non Fungible Tokens (NFT Crypto) and the Piracy Problem, 7Startup (Feb. 11, 2022), https://perma.cc/2GNQ-Z59M.
131
Cramer & Munkittrick, supra note 92.
132
James Surowiecki, The Piracy Paradox, The New Yorker (Sept. 17, 2007), https://perma.cc/X293-EESG.
133
See Francesca Montalvo Witzburg, Protecting Fashion: A Comparative Analysis of Fashion Design in the United States and the European Union, 107 Trademark Rep. 1131, 1141 (2017) (explaining that the “piracy paradox” is the notion that copying “actually promote[s] innovation and benefit[s] originators” in the U.S. fashion industry).
134
See Surowiecki, supra note 133.
135
Matt Linderman, Is the Piracy Paradox Missing the Point?, Signal v. Noise (Nov. 12, 2007), https://perma.cc/W9UA-CEYE.
136
Andrews, supra note 109, at 221 (“[Designers] feel a sense of personal harm when their ‘art’ is cheaply and slavishly copied.”).
137
Andrews, supra note 109, at 206.
138
See, e.g., 17 U.S.C. § 102; 35 U.S.C. § 171; Andrews, supra note 109, at 221.
139
See Lieber, supra note 16; Anne-Christine Polet, How Will Web3 Impact Fashion?, Forbes (Apr. 29, 2022, 8:15AM EDT), https://perma.cc/LZN6-8QNY (explaining that Goldman Sachs sees the Metaverse as an $8 trillion economic opportunity, which will come with a lot of unknowns).
140
Lieber, supra note 16.
141
See generally Holland, supra note 55 (describing that along with the future of fashion in Web3 comes speculation).
142
See generally Lieber, supra note 16; Anne Slowey, What Happens If Fashion Changes to the See Now/Buy Now Model?, Elle (May 24, 2016, 5:00 PM EST), https://perma.cc/7KN8-YRYZ (explaining that a few designers have attempted to switch to a see now/buy now model to rival fast fashion, but efforts have mainly fallen flat); Dana Soffer, Fast Fashion: Can Creativity Still Hold a Place?, 3D Insider, https://perma.cc/D8Y8-DHUN (last visited Mar. 18, 2024).
143
See Lieber, supra note 16.
144
Landon Wilneff, Nike v. StockX: “Running” to NFTs, IP Bytes (Nov. 19, 2022), https://perma.cc/FAP7-5QAL.
145
Sharon Urias, Trademark and Copyright Considerations for NFTs, Reuters (May 2, 2022, 10:35 AM EDT), https://perma.cc/HW9H-SAV2 (analogizing an NFT to a painting that is authenticated by the artist’s signature).
146
First Am. Compl., supra note 101, ¶ 10; Oscar Gonzalez, Nike’s Legal Fight with StockX Over Sneakers, NFTs: What to Know, CNET (May 21, 2022, 7:00 AM PT), https://perma.cc/ZZ9N-S9U6 (showcasing that one of Nike’s NFTs named “Nike Dunk Genesis Cryptokicks” has sold for more than $130,000); Adele Ioana, 15+ Luxury Fashion Brands Into NFTs in 2023, NFT Evening, https://perma.cc/5JBD-Z7JD (last updated Oct. 5, 2023).
147
See First Am. Compl., supra note 101, ¶ 4.
148
First Am. Compl., supra note 101, ¶ 4.
149
See Wilneff, supra note 145 (describing StockX’s digital twin program, where “[i]nstead of buying an expensive pair of shoes, customers can a buy a digital twin NFT,” and have the ability to redeem the NFT for the physical pair of shoes).
150
See, e.g., Brendan Dunne, Nike v. StockX Lawsuit: How One Buyer Got 38 Fake Pairs of Sneakers, Complex (Mar. 21, 2023), https://perma.cc/4HMG-U8A7 (describing that one sneaker collector bought sixty pairs of sneakers from StockX and thirty-eight of them were counterfeit); Riley Jones, Nike Calls Out More Fake Sneakers in StockX Lawsuit, Complex (Dec. 15, 2022), https://perma.cc/D5MM-TP5U.
151
See First Am. Compl., supra note 101, ¶¶ 4–5; Brian Gregg & Philip Petrina, 2022 Trademark Law Recap: NFTs, Distinct Branding, and the First Amendment, JD Supra (Jan. 16, 2023), https://perma.cc/C6S3-MQRX.
152
See First Am. Compl., supra note 101, ¶¶ 4–5; Dunne, supra note 151.
153
See Jones, supra note 151.
154
Dunne, supra note 151; see, e.g., Gonzalez, supra note 147 (explaining how Jordan 1 Retro High OG Patent Bred (Vault NFT) is selling for $8,000).
155
Palkriti Pande, NFTs, Fashion & Property, Fashion & L.J. (Jan. 7, 2023), https://perma.cc/YNU4-4QDY
156
See Mazza, supra note 110 (“Another dilemma fashion brands might face comes with third-party created NFTs displaying their brand or other intellectual property rights (i.e., copyright, designs, etc.) without the brand’s authori[z]ation.”).
157
Stasa, supra note 96.
158
Witzburg, supra note 134, at 1140.
159
Witzburg, supra note 134, at 1141.
160
Note, The Devil Wears Trademark: How the Fashion Industry Has Expanded Trademark Doctrine to Its Detriment, 127 Harv. L. Rev. 995, 999 (2014) [hereinafter The Devil Wears Trademark].
161
See Andrews, supra note 109, at 206. But see Divyansha Goswami, Shared Aesthetic Vision of Fashion & Art Worlds: A Case for Legal Protection of Fashion as Art, Medium (Oct. 6, 2021), https://perma.cc/TQ4C-JKJ8 (describing Yves Saint Laurent’s 1965 cocktail dress collection, whose colors and patterns were adapted from Dutch abstract artist Piet Mondrian).
162
See The Devil Wears Trademark, supra note 161, at 1011.
163
See Shiraz Jagati, How the Metaverse Can Revolutionize the Fashion Industry, CoinTelegraph (July 7, 2022), https://perma.cc/SR5E-3LKX.
164
See Fashion Has Entered the Metaverse–A Collision of Design and Technology, JOOR (Apr. 20, 2022), https://perma.cc/FU3S-QC86; Frances Solá-Santiago, Logomania 2.0 is One of 2021’s Defining Trends, Refinery29, https://perma.cc/V8PX-U332 (last updated Dec. 20, 2021, 10:52 AM).
165
The Devil Wears Trademark, supra note 161, at 1011.
166
See Serena Totino, Dior Did Not Saddle on Distinctive Character of Its Iconic Bag, The Nat’l L. Rev. (Nov. 17, 2022), https://perma.cc/2TCW-X2Q7. See generally Uchenna Nwokolo, Dior Logo: The Story of Christian Dior Iconic Brand Strategy, Bus. Yield (July 27, 2023), https://perma.cc/UG9B-LR2E.
167
See The Devil Wears Trademark, supra note 161, at 1002; Solá-Santiago, supra note 165 (describing how “logomania” has been prevalent in 2010, 2018, and 2021).
168
See The Devil Wears Trademark, supra note 161, at 1011; Christian Allaire, Logomania Has Gone Subtle This Fall (Yes, Really), Vogue (Nov. 2, 2022), https://perma.cc/75K5-43AW (explaining how brands’ new collections include trademarked logos subtly applied all over the clothing).
169
See Osman Ahmed, As Branding Evolves, What’s a Logo Worth?, Bus. of Fashion (July 29, 2017), https://perma.cc/HBD2-WAUM.
170
The Devil Wears Trademark, supra note 161, at 1013 (emphasis removed).
171
The Devil Wears Trademark, supra note 161, at 1013.
172
See generally Holland, supra note 55 (demonstrating that Gucci, Burberry, and Ralph Lauren are investing millions of dollars into the metaverse); Zepeto X Gucci, Gucci, https://perma.cc/Z6RX-QR3B (last visited Mar. 18, 2024) (showing that most of the clothes that are featured have a Gucci trademark somewhere on the article).
173
See, e.g., Allaire, supra note 169; Zepeto X Gucci, supra note 173.
174
See The Devil Wears Trademark, supra note 161, at 1002.
175
See, e.g., Allaire, supra note 169.
176
Contra Heyison, supra note 122, at 256. See generally Protection for Fashion Design, supra note 120 (“The United States should no longer be a pirate nation with respect to intellectual property, as we were in our early years. We are a global superpower . . . except in the area of fashion design.”).
177
Andrews, supra note 109, at 188.
178
Andrews, supra note 109, at 212 (“[T]he fashions of the past fifty years are often discussed as operating within and contributing to major artistic movements and theories, particularly minimalism and postmodernism.”); Lo, supra note 113, at 168–69.
179
See, e.g., Gucci, The Gucci Cosmogonie Fashion Show, YouTube (May 16, 2022), https://perma.cc/43TC-8FSY (“Alessandro Michele debuted his latest collection for the House.”); Dolce & Gabbana, Siracusa 2022: Dolce&Gabbana Alta Moda Fashion Show in Piazza del Duomo, YouTube (July 10, 2022), https://perma.cc/RS3T-HXY3 (showcasing the “[p]rofound representations of Sicily and its people, the unique pieces of the Collection touch the mythical ground of the oldest heart of the city, evoking exquisite beauty”).
180
See generally Rosalind Jana, The Metaverse Could Radically Reshape Fashion, Wired (Apr. 11, 2022, 7:00 AM), https://perma.cc/Q6KZ-8U9R (“Garments that dissolve in water, change color, or sprout wings could thrive in Web3—and inspire a new era of design IRL.”).
181
Id. (stating that “fashion designer Scarlett Yang created a garment that looked like glass, changed texture in response to temperature and weather, and dissolved if you left it in water,” and that she also made a physical and virtual version of the dress).
182
See Id.
183
Valentina Mazza, Intellectual Property Rights in the Metaverse: NFTs and Fashion, DLA Piper (Feb. 22, 2022), https://perma.cc/9S43-SBDC.
184
See, e.g., Id. (explaining that NFTs cannot fully guarantee the authenticity of a product “if the information originally entered is false or in error from the start, [because] the NFTs will confirm and perpetuate that falsehood in all its future sales”); How to Stay Safe from NFT Scams, Kaspersky, https://perma.cc/7SYM-TULQ (last visited Mar. 11, 2024).
185
See Rosenblatt, supra note 14, at 323–24.
186
Heyison, supra note 122, at 268.
187
Heyison, supra note 122, at 268.
188
Lo, supra note 113, at 193, 195.
189
Protection for Fashion Design, supra note 120, at 2–3 (“This protection would last only three years, allowing original designers sufficient time to recoup the expenses incurred in designing and developing their fashion works.”).
190
See Protection for Fashion Design, supra note 120, at 11.
191
Casey E. Callahan, Note, Fashion Frustrated: Why the Innovative Design Protection Act Is a Necessary Step in the Right Direction, but Not Quite Enough, 7 Brook. J. Corp. Fin. & Com. L. 195, 206 (2012); Matthew L. Seror, The Innovative Design Protection Act: Bound for Success or Doomed to Fail?, Buchalter Never, https://perma.cc/A3TL-44QL (last visited Mar. 18, 2024).
192
Innovative Design Protection and Piracy Prevention Act, S. 3728, 111th Cong. § 2(a)(2)(B)(10) (2010).
193
See Protection for Fashion Design, supra note 120, at 4–5.
194
See Lo, supra note 113, at 200.
195
See Joanna Nikas, How Bella Hadid’s Spray-on Dress Was Made, The Cut, https://perma.cc/TN37-5DL5 (last updated Oct. 4, 2022).
196
See, e.g., Rise to the Occasion in These Sky-High Platform Heels We’re Obsessed With, Denizen (July 7, 2022), https://perma.cc/LEL4-WZHG.
197
See, e.g., Shannon Adducci, Valentino Took its Platforms Up a Notch for Spring Summer 2023, Yahoo Sports (Oct. 2, 2022), https://perma.cc/2ZPZ-2QUC; Laird Borrelli-Persson, Everything You Need to Know About Platform Shoes, Vogue (July 26, 2022), https://perma.cc/N8RY-7WS3.
198
Lo, supra note 113, at 200; see also Rachel Jones, The Impact of Fakes and How to Combat Them, Forbes (Feb. 8, 2022, 10:15 AM EST), https://perma.cc/S3LQ-V83B (“[F]raudsters are duping individuals and businesses into thinking they are buying genuine products . . . . For many businesses, counterfeits can mean loss in revenue and damage to customer trust and reputation.”).
199
Lo, supra note 113, at 201.
200
The Devil Wears Trademark, supra note 161, at 999.
201
Andrews, supra note 109, at 200. See generally, Blake Na, Copyright Law and the Digital Era, Chi.-Kent J. Intell. Prop (May 3, 2019), https://perma.cc/993F-LKTV.
202
See Morgan Silva, Virtual Fashion: Can Designer’s Lose Their Intellectual Property Rights?, Fordham Intell. Prop Media & Ent. L.J. (Jan. 11, 2022), https://perma.cc/7XTZ-G5N4; Bhavya Sree, Rise of Virtual Fashion and Legal Concerns, Fashion & L.J. (Jan. 10, 2023), https://perma.cc/RT55-8V25.
203
See, e.g., Charlie Teather, 13 Summer Fashion Trends the Style Set Are Obsessing Over this Season (and the One That They’re *All* Ditching), Glamour (July 6, 2023), https://perma.cc/Q6RQ-GVQ3 (describing the upcoming fashion trends to watch for Spring 2023, including colors and patterns that are expected to “heavily influence the fashion landscape”).
204
Marcus, supra note 17 (explaining that there is a war going on in fashion, and the issue is “when sellers copy not just a brand’s style but impersonate its identity”).
205
See, e.g., Lessie McCarthy, Fast Fashion Brands ‘Stealing’ from Small Designers, PIBE, https://perma.cc/K4NR-BSXM (last visited Mar. 18, 2024) (describing how Bailey Prado had over forty of her handmade high-quality crochet garment designs stolen by Shein, with “no acknowledgement, no credit, no payment, and no apology”).
206
Callahan, supra note 192, at 208.
207
Cramer & Munkittrick, supra note 92; see, e.g., Scripps News, NFT Art Auctions Have a Piracy Problem, YouTube (May 18, 2021), https://perma.cc/D4TY-2JCK (describing how artists are having their artwork stolen and turned into NFTs and there are currently no safeguards to stop it from happening).
208
See Witzburg, supra note 134, at 1141.
209
See generally Madison Yoder, An “OpenSea” of Infringement: The Intellectual Property Implications of NFTs, 6 U. Cin. Intel. Prop. & Computer. L.J., Apr. 2022, at 5–6; What’s Next for Creativity in Web3?, IronHack (Nov. 23, 2022), https://perma.cc/5N4P-ZV75 (explaining how creators are utilizing Web3 to design NFTs).

Victoria Fahey

J.D. New England Law | Boston (2024)

Tagged in :

Digital, Fashion, Intellectual Property, IP, IP law, Supreme Court, Web3