Is Grey the New Black?
Law is often ambiguous or subject to interpretation, but sometimes the black letter rules are clear: it is illegal to place false labels on knockoffs or to sell replicas as the real thing. We can debate the merits of the law, discuss the purpose of the law, or ignore the law, but the law still sees certain actions in black and white terms.
There is still, however, quite a bit of grey area in the law -- areas of uncertainty, where both the rules and questions of right or wrong are unclear. (I suppose law is like mold; the fuzzy grey areas are the ones growing fastest.) For example, how should we categorize a clearly labeled handbag from an established but inexpensive brand that resembles a much more expensive, exclusive design?
Designer Ella has raised this issue recently in not one but two blogs, Pursed Lips and Kiss Me, Stace. She fell in like (let's reserve love for a grander passion) with and bought the Wilsons Leather Turn-Lock Handbag -- which just happens to resemble the iconic Hermes Birkin (now there's a love object!). Enter guilt -- but not too much guilt, as one retails for $60 on sale and the other starts at nearly $10,000, if available. In addition, Ella finds the details of the Wilsons more suitable for her needs.
From a legal perspective, Wilsons is pushing the envelope but probably doesn't have too much to worry about. There are substantial differences between the two bags (the Wilsons zips at the top, for example), so a court would probably consider the likelihood of consumer confusion to be low. Futhermore, Hermes has much more pressing concerns in the realm of copying.
From a normative perspective, is there anything wrong with the Wilsons? Well, that's up to each consumer to decide. After all, all designers are "inspired" by others, whether they admit it or not, and there are only so many ways to make a receptacle for carrying around the bits and pieces of daily life, a.k.a. a purse. Still, certain designs are more recognizable and more creative than others.
An informal study of what degree of copying is considered "wrong" within the fashion community leads me to list the following basic objections:
1. Too literal. Inspiration is fine, line-for-line copying is cheap and uncreative.
2. Too close in time. It's one thing to reinterpret a 1960s Courreges, it's another thing to knock off last season's Prada.
3. Too similar a market niche. H&M or Zara can get away with much more than, say, Ralph Lauren copying YSL. Issues of competition aside, we simply expect more from expensive design.
Too much grey area? Well, that's why we have lawyers -- and editors, critics, tastemakers, fashionisti, bloggers, discerning consumers, and you.