ATTORNEY SCOTT COMMENTARY:
As our readers know, the silhouette of a garment or piece of clothing does not enjoy copyright protection in the United States (though it does elsewhere). So, copyists have long kept their beady little eyes on the work of edgier indie designers in attempts to find and copy styles that they think will appeal to the market. Recently, though, a thoughtful and thorough court decision issued by the 6th Circuit Court of Appeals provided a ray of hope for designers whose works are copied. In that case, Varsity Brands sued a copyist for copying not the silhouette but the color blocking and decorative designs on a series of cheerleader uniforms. The Appeals Court found that the Varsity Brands’ designs, original in their own right, deserved protection, reversing a lower court’s decision that found no protection for the designs.
Below, we have an example that may or may not fall within the purview of the Varsity Brands decision. H&M, known to bargain-hunters and fans of all things Swedish as a fast-fashion purveyor, recently began marketing the below item:
This item brought to mind, for some, a previously-released design by the boutique label Untitled & Co.:
While the silhouettes are similar, incorporating the classic boxer aesthetic, and both garments are labeled with an UN-word and both garments include similar banding, it is a close question as to whether this case would be a knock-out in Court.