Author: Zhihui Zhao, Attorney-at-law @Dakun IP Law Firm
The garment industry is an industry full of creativity. Original designs are not only the core competitiveness of garment enterprises, but also the driving force for the development of the garment industry. At present, plagiarism and imitation have become a serious challenge for the garment industry, especially with the rise of the Internet and social media, which makes information dissemination faster, resulting in original designs being accessed and copied quickly, in a large scale. Once a design gets attention on social media, copycats quickly copy and launch similar styles, or even sell them at a lower price, bringing great losses to the original business.
Although specialized law on intellectual property, such as the Trademark Law, the Copyright Law, the Patent Law, etc., provide some protection for garments, there are often difficulties in their practical application. Plagiarists sometimes only copy the style and do not copy the trademark, so it does not constitute trademark infringement; the clothing design drawings or model drawings of the right holder can be the object of copyright protection, but most plagiarists will not come into contact with the clothing design drawings or model drawings of the right holder but directly imitate and plagiarize the garments, while the garments are basically excluded from the protection of the copyright law due to their functional elements, and most of the artistic modeling are in the public domain, so there are not many cases of garments that can obtain copyright protection in practice; design patents are the least controversial type of right protecting garment designs, but it takes a long time for them to get granted and they are expensive to maintain, making them probably not the best choice for trendy garments that are only sold in a certain period of time or season.
In recent years, in response to the plagiarism and imitation of ready-to-wear garments, some courts have made some judgments worthy of reference from the Anti-Unfair Competition Law. This article will discuss the methods of dealing with garment style infringement from the perspective of the Anti-Unfair Competition Law based on recent cases.
The Anti-Unfair Competition Law has the function of supplementing the specialized laws on intellectual property. It is different from the specialized laws on intellectual property in the rights protection mode, and it assesses the legitimacy of the act by judging the mode of infringement. Therefore, the act of copying or imitating garment may constitute unfair competition.
In the case of Guangzhou Aibo Garment Co., Ltd. v. Hangzhou Laizhe Garment Co., Ltd., the plaintiff Aibo Company claimed that the 99 models of clothing sold in the defendant's store were all plagiarized from the plaintiff's clothing, which constituted an act of unfair competition.
Application of Article 6 of the Anti-Unfair Competition Law
The Guangzhou Internet Court applied Article 6, Item 4 of the Anti-Unfair Competition Law to determine the plagiarism of clothing styles. In terms of the application of legal provisions, the court held that acts causing confusion other than counterfeiting of commercial marks, that is, the combination of multiple elements to constitute an overall counterfeiting and thus causing confusion, can be fully included in the fourth catch-all clause in Article 6 of the Anti-Unfair Competition Law; and Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law of the People's Republic of China does not expressly exclude the determination of overall confusion. At the same time, the court held that the acts subject to Article 6, Paragraph 4 of the Anti-Unfair Competition Law must meet the three elements of "the defendant constitutes unauthorized use", "the plaintiff's clothing involved in the case has a certain influence", and "it is easy to cause confusion".
With regard to the defendant's unauthorized use, the court held that the defendant’s 99 clothing styles are similar to those of the plaintiff’s in different degrees, and in the case of such large-scale similarity, the defendant did not prove that all the styles were its original designs, nor did it provide the source of the designs, so its has reached a high degree of probability that the defendant's are counterfeit styles of the plaintiff's , which subjectively constituted unauthorized use.
With regard to the plaintiff's clothing involved in the case has a certain influence, the court considered the recognition of the plaintiff's clothing, the consumer evaluation of the accused clothing store, and the plaintiff's sales and other aspects, and held that the popularity of the plaintiff's brand could affect the style design to a certain extent, so as to prove that the style of the clothing involved in the case had a certain influence.
Regarding the act of confusion, the court discussed in detail the following aspects:
1. When consumers search for the plaintiff's clothing involved in the case through "searching for the same model", the defendant's relatively lower price of the same type of clothing will appear. Some consumers believe that the main reason for the higher price of the plaintiff's same clothing is the brand premium, etc., but there is not much difference in the quality of the two parties’ clothing. Therefore, the defendant's acts can easily lead some consumers to mistakenly believe that the defendant's same type of clothing has basically the same quality assurance as those of the plaintiff.
2. In the case that the defendant does not prove that the workmanship quality of its clothing is basically equivalent to that of the plaintiff's clothing, the counterfeiting will cause confusion about the quality of the clothing of both parties.
3. The defendant's time of introducing the same type of clothing involved in the case to the market was close to the time when the plaintiff's clothing was on the market, and there was an overlap between the two, which not only had the objective conditions of confusion, but also disrupted the order of market competition.
In addition, the judgment is of great significance to the determination of the impropriety of the defendant's conduct and the destruction of the order of market competition. The court particularly emphasized that imitation is free in principle, but the purpose of tolerating imitation is to encourage the all-round development of the industry, and if imitation cannot promote the innovation of operators in the industry but would lead to market confusion, it is obviously detrimental to promoting competition and is actually an act that disrupts the normal order of competition. The defendant's such free-riding will lead to the inability to obtain a reasonable return on the prior innovation, and this realistic situation of "who innovates who loses money" will result in no operator willing to invest in advance, and everyone will have no choice but to watch and wait for others to innovate in an attempt to "free ride", and over time the entire market will stagnate.
Application of Article 2 of the Anti-Unfair Competition Law
In the case of unfair competition dispute between Lingzhi Fashion (Tianjin) Co., Ltd. and Shanghai Diqing Garment Co., Ltd., the plaintiff Lingzhi Company argued that the defendant Diqing Company sold clothing of the same styles as the plaintiff's clothing in its Taobao store and WeChat account, which constituted unfair competition.
The People's Court of Yuhang District, Hangzhou Municipality, held that the defendant's above-mentioned acts clearly squeezed out the plaintiff's trading opportunities and undoubtedly harmed the plaintiff's legitimate rights and interests by purchasing a large number of clothing operated and sold by the plaintiff, and then completely imitating the same styles of clothing and selling them at low prices through Taobao stores, WeChat and other channels.
With regard to the impropriety of the acts, the court also focused on the fact that a novel design or a series of products that present brand characteristics can gather more attention from consumers and bring more competitive advantages to the operator, which is undoubtedly a business advantage accumulated by the operator's investment with high costs. However, the imitator does not invest any intellectual labor in the product style design, material selection, workmanship processing, etc., but obtains profits through the goodwill accumulated by other people's brands and products. This kind of behavior obviously has the subjective intention of clinging to the goodwill of others' brands and products and grabbing the fruits of others' labor, which objectively undermines the incentive mechanism of market innovation and disrupts the order of market competition, and is an improper act that violates the principle of good faith and business ethics.
Similarly, in the unfair competition dispute between Hangzhou Jiangnan Cloth Clothing Co., Ltd. and Jiang Jianfei, the plaintiff, Jiangnan Cloth Clothing Company, argued that the styles and style numbers of the 46 women's clothing sold by Jiang Jianfei in the online store involved in the case were exactly the same as the styles and style numbers of the clothing designed, produced and sold by Jiangnan Cloth Clothing Company, which constituted unfair competition.
In the retrial judgment, the Zhejiang High People's Court held that: as far as clothing products are concerned, clothing styles are one of the core competitiveness of a clothing enterprise and can bring more competitive advantages to operators. Clothing style numbers mainly play a role in attracting network user traffic. Jiangnan Cloth Clothing Company enjoys legitimate competitive interests in the clothing styles and style numbers involved in the case. Jiang Jianfei took advantage of the correspondence between the clothing styles and style numbers of Jiangnan Cloth Clothing Company, and without any creative labor, copied Jiangnan Cloth Clothing Company's clothing styles on a large scale and used the same style numbers to attract traffic. The act violated the principle of good faith and business ethics and was improper. It has harmed the legitimate rights and interests of Jiangnan Cloth Company and relevant consumers, and disrupted the order of market competition.
It is worth noting that in the first instance, second instance and retrial procedures of this case, the courts held different opinions on the applicable laws and regulations on unfair competition. The court of first instance held that the clothing style did not fall within the protection scope of the Anti-Unfair Competition Law, and that the clothing style numbers were subject to Article 6, Paragraph 4 of the Anti-Unfair Competition Law. The court of second instance held that the evidence provided by the plaintiff was insufficient to prove that the model number of their clothing had a certain influence; The retrial court held that the evidence provided by the plaintiff was insufficient to prove that the style and style numbers of the plaintiff's clothing had a certain influence, so Article 6, Paragraph 4 of the Anti-Unfair Competition Law was not applied, but Article 2 was applied.
Through the analysis of the above cases, it can be seen that the overall plagiarism of clothing styles can be regulated through the Anti-Unfair Competition Law. There are different interpretations and opinions on the specific applicable legal provisions in different courts. In the academic community, there are also different views. Some scholars believe that influential styles and style numbers, especially seasonal hits, have high commercial value and can be regarded as a kind of commercial mark, thus copying styles and style numbers constitute overall confusion, and Article 6 of the Anti-Unfair Competition Law is applicable. Other scholars believe that Article 6 of the Anti-Unfair Competition Law prohibits "acts causing confusion", and if the "same style" sold cannot cause confusion among consumers, only Article 2 can be applied.
Although there are still differences in the application of the law, the courts have gradually recognized the unfairness in such behavior, and have regulated the relevant behavior through the Anti-Unfair Competition Law, which provided effective means to deal with the large-scale plagiarism and imitation of finished garment products. These are also encouraging news for apparel enterprises. It is expected that the study and exploration of the protection model of garments from the perspective of the Anti-Unfair Competition Law will reach a broader consensus to ensure that the environment of fair competition and innovation could be effectively maintained.
