Cheap Chic: when inspiration becomes imitation

Retailers are keen to emulate the season's new trends to meet their customers' demands for cheaper copies of exclusive catwalk fashion. For their part, fashion houses understand that a trend arises when others take inspiration from an exclusive design. Popularising a particular piece can endorse brand recognition.

But when does imitation become "de trop"? Designers need to avoid mass-produced copies of successful designs being sold at bargain basement prices, and are showing an increasing willingness to take a tough approach to those infringing their intellectual property rights.

Last year, Top Shop was reportedly required to pay £12,000 in damages and to destroy 1,000 pinafore dresses, following a copyright skirmish with Chloe. Similarly, both M&S and New Look have withdrawn fashion products after being threatened with legal action by Jimmy Choo.

Katie Withers, an associate specialising in intellectual property at international law firm Eversheds LLP, comments, "As consumers become more brand-aware, the demand for designer copies increases. Efficient manufacturing methods and shorter lead-times enable retailers to make copies available as soon as the original couture items enter the market. This has almost certainly had an impact on the fashion houses' bottom line.

"European design laws have made it easier for designers to aggressively pursue infringers. With fashions changing every season and high stock turnover, infringement actions need to be quick and easy. EC design registration can help designers to prevent copies reaching the shelves and can also act as a deterrent to would-be infringers."

Recent years have also seen disputes between higher-end retailers and their lower-priced counterparts, indicating that an increasingly bullish approach to enforcement is not confined to couturiers. Primark has been involved in copying skirmishes with H&M and Monsoon and has itself accused Matalan of copying a hooded jumper.

In December 2007, an Irish court concluded that Dunnes Stores had copied two Karen Millen shirts and a sweater. Dunnes intends to appeal, and similar cases brought by Whistles and Coast (part of the same group as Karen Millen) are still pending.

In addition to more aggressive enforcement of intellectual property rights, it is likely that designers will also increasingly look for innovative ways to protect all aspects of their design. For example, the scope of design protection is now wider, and can include an article's shape, colour and surface decoration as well as packaging and typefaces.

Luxury brand owners also need to ensure their brand value and "name" are protected. They are able to attract higher prices for their goods because their name is associated with exclusivity and quality. This association can be severely damaged by piracy because the brand becomes associated with cheaper, mass-produced copies.

Katie Withers continues, "For fashion designers, copying leads to brand dilution and threatens their investment in original creative ideas. The recent spate of disputes indicates that both designers and retailers are now familiar with all the options available for protecting and enforcing their rights. As consumers look increasingly to the high street to provide high fashion catwalk-inspired pieces, awareness of these rights is crucial."