As Coco Chanel once said, “Only those with no memory insist on their originality.” Regardless, fashion and accessory plagiarism is a contentious issue in today’s fashion industry. With famous designers accusing each other of building a career off of copying, the line between “stealing” and “inspiration” becomes very blurry. It is in the midst of this mess that we find the lawsuit under discussion.
In March of this year, Swatch filed an aggressive lawsuit against Target for blatantly copying the Swatch design for its “zebra” and “multi-colored” watches. Swatch, a Swiss company known for its fashionable plastic watches, claims that Target’s watches clearly infringe upon the aforementioned Swatch designs. Among the claims filed against Target, Swatch is asserting that first, Target has illegally copied the trade dress of the “zebra” and “multi-colored” watch lines produced by Swatch this season, and second, that the similarity of Target’s lower-quality, plastic watches, damages Swatch’s sales by stealing customers and creating confusion. In its complaint, Swatch claims, “by adopting the Zebra Watch trade dress and the Multi-Color Watch trade dress, defendants are unfairly competing.”
Under current copyright law, fashion and accessory designs are not protected, which is most-likely why Swatch is ditching a lawsuit under the Copyright Act, and is instead seeking a remedy under the U.S. Trademark Act (also known as the Lanham Act), which covers trademarks and trade dress. Protection for trade dress is geared toward protecting consumers from similar packaging or product appearance that would confuse them into buying a product they think is one brand, but is really the imitation. According to Forbes, “trade dress law protects the design, packaging or appearance of apparel and accessories, solely to the extent they identify the source and origin of such products.”
In order to take advantage of trade dress protection under the U.S. Trademark Act, Swatch will have to show that the Zebra and Multi-Colored watch designs have acquired a secondary meaning to consumers that identifies those designs as uniquely Swatch designs. If Swatch can secure the Zebra and Multi-Colored designs as trade dress, it will be on its way to stopping Target from using the designs in the marketplace and diluting its product. Dilution exists when the use of confusingly similar designs either blurs or tarnishes a company’s existing design. Both of these claims, however, still rest on whether or not a court will find that Target’s designs are similar enough to create confusion among consumers between Target watches and Swatch watches in the marketplace.
Although Target has not publicly commented on the lawsuit, its legal representative quoted the company’s policy, which is “to respect the intellectual property rights of others and we expect the same from our vendors and partners.”
*Alexandra Braverman is a third year JD/MBA candidate at Wake Forest University School of Law and School of Business. She holds a Bachelor of Arts in both Political Science and Anthropology from the University of California, Berkeley. Upon graduation, she intends to practice business law, focusing on corporate taxation.