Fast fashion giant Shein is facing a lawsuit from Japanese clothing retailer Uniqlo over claims that Shein copied Uniqlo’s viral shoulder bag. The bag, which has been trending on TikTok and promoted by influencers, is a simple canvas tote with a drawstring closure. Uniqlo is seeking an injunction to prevent Shein from selling the bag and is also asking for damages.
This is not the first time that Shein has been accused of copying designs from other brands. In 2019, the company was sued by Levi Strauss & Co. for allegedly copying the design of its iconic trucker jacket. Shein has also been accused of copying designs from other fast fashion retailers, such as Zara and H&M.
What is Design Right infringement?
Design right infringement is a type of intellectual property law that protects the design of an object from being copied without the permission of the owner. In order to be protected by design right, a design must be new and original. This means that it must not have been previously disclosed to the public and that it must not be commonplace.
A breakdown of Design Right infringement
Protecting the appearance of your designs is crucial in many industries, and the law offers two main forms of protection: registered design rights and unregistered design rights. Understanding how infringement works under both is key.
- Registered Design Rights:
- Exclusive right to reproduce the design commercially: this covers making products to the design, applying it to other products, or importing/exporting infringing articles.
- Protection: up to 25 years (renewed every 5 years).
- Infringement:
- Direct copying: Making substantially identical articles.
- Indirect copying: Creating designs producing the same “overall impression” on an informed user.
- Other acts: Importing, making design documents for infringing articles, etc.
- Unregistered Design Rights:
- Automatic protection upon creation: no registration required.
- Two types of protection:
- Shape and configuration: 10 years from first sale or 15 years from creation (whichever ends first).
- Appearance: 3 years from first public disclosure.
- Infringement: direct copying as in registered designs.
Key points to remember:
- “Informed user” test: judges consider what an average person familiar with the kind of design would think when comparing the original and allegedly infringing designs.
- Defences: prior art (designs existed before), independent creation, functionality justification, etc.
- Enforcement: civil court proceedings for injunctions, damages, and seizure of infringing goods.
Has Shein Infringed Uniqlo’s Design Rights?
It is too early to say whether or not Shein has infringed Uniqlo’s design rights. This will be a matter for the courts to decide. However, the fact that Uniqlo is seeking an injunction suggests that the company believes that it has a strong case.
The Implications of This Case
If Uniqlo is successful in its lawsuit, it could have a significant impact on the fast fashion industry. Shein is one of the world’s largest fast fashion retailers, and a ruling in Uniqlo’s favour could deter other companies from copying designs. This could lead to higher prices for consumers, as fast fashion retailers would have to invest more in design and development.
It is also worth noting that this case is being brought in the United Kingdom. The UK has some of the strongest design right laws in the world. This means that Uniqlo is likely to have a stronger case than it would in other jurisdictions.
The lawsuit between Uniqlo and Shein is a reminder of the importance of protecting intellectual property. Design right is a valuable tool for designers and businesses, and it is important to enforce these rights when they are infringed. The outcome of this case will be closely watched by the fashion industry and beyond. If you are in the fashion space yourself and would like further advice on protecting your designs, please press the ‘Get In Touch’ button at the top of this page.
