Target is being sued by Burberry, and it reveals one of the biggest problems facing the clothing industry

Court documents reveal how similar Target's products are to Burberry's.

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Court documents reveal how similar Target’s products are to Burberry’s.
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Burberry

  • Target is being sued by British designer brand Burberry, which says the discount chain copied the design of its signature check print.
  • Burberry is seeking $2 million in damages for each trademark that it alleges Target has infringed, in addition to funds to cover all of its legal fees.
  • Copycat fashion is an industry-wide issue. Fashion does not have the same copyright protection as other creative media such as art, literature, and film, which means that designers are more vulnerable to having their work copied.

Burberry is a quintessential British designer brand that’s been around since the mid-19th century and is best-known for its signature check print.

The print has been a core part of the brand’s image from early on and was trademarked in the 1920s. Over the years, it has frequently become the target of cheap knockoffs and been copied by other stores.

Burberry is now accusing Target of being one of those copycats, and last Wednesday, it filed a lawsuit against the discount chain. The suit centers around several scarves sold by Target, which Burberry alleges are copies of its check print.

Other Target products.

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Other Target products.
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Burberry

A spokesperson for Target told Business Insider: “We have great respect for design rights. We are aware of the filing by Burberry and hope to address the matter in a reasonable manner.”

According to documents filed with the United States District Court for the Southern District of New York, Burberry is claiming that Target created the scarves after Burberry had already sent the retailer a cease-and-desist letter in 2017. Target had used a similar version of the print on other products such as glasses cases, bags, and water bottles.

Burberry is requesting that the store immediately stop producing and selling these products. It is seeking $2 million for each trademark it says has been infringed, plus the cost of attorney fees.

Target is well-known for partnering up with luxury brands – it recently partnered with Hunter and worked with fashion designer Victoria Beckham in the past. This makes this situation all the more problematic, according to Burberry, as it “heightens the risk of consumer confusion” and the possible assumption that these brands have collaborated, the court filings state.

“Although Target’s copycat scarves are of inferior quality, they are superficially indistinguishable from genuine Burberry scarves,” it adds.

A growing problem in fashion

This case is indicative of a bigger issue that is currently plaguing the fashion world.

Acne's shearling jacket (left) retailed for $2,700, while Zara's copy (right) cost $149.

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Acne’s shearling jacket (left) retailed for $2,700, while Zara’s copy (right) cost $149.
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Zara & Acne

Several other low-cost stores have been accused of crossing the line between being inspired by a designer and copying the item entirely.

Zara and Forever 21 are among them. The latter is currently embroiled in a feud with Gucci after the designer alleged that the teen retailer had ripped off its signature “blue-red-blue” and “green-red-green” stripes in various items of clothing. In the past, Forever 21 has faced a host of lawsuits from retailers and designers such as Diane von Furstenberg, Adidas, and Puma.

This is because fashion does not enjoy the same level of protection as other creative media such as art, literature, and film. Fashion items serve a purpose by nature, which means they are exempt from copyright laws.

“To be protectable by copyright, an item cannot be functional,” Christiane Campbell, a partner at the Duane Morris law firm, told Business Insider. Because of this, “the argument has always been that fashion is not protectable,” she said.

There are certain ways to protect a product’s design, but the process to do so is time-consuming and expensive.

Retailers can use trade dress trademark laws to protect the visual characteristics of a product: the color, original pattern, or unique design element, for example, that are specific to that designer or product.

Campbell used the red-soled heels at Christian Louboutin as an example. The heels are recognized by the US courts as a defining symbol of the brand and are now protected by trademark law, but this doesn’t happen overnight.

“There is acquired distinctiveness, and it takes a lot of time and money,” Campbell said.

Plus, it’s not recognized by all legal jurisdictions – in the EU, for example, the signature red soles are not protected.

Designers can also file for a design patent, but these are expensive and can take around two years to process.

Even if designers do decide to take the option to sue for copyright infringement, this lengthy process is undermined by the speed at which some stores can have copycat items out on shelves. This means that retailers are sometimes less intimidated to make products that are strikingly similar to what’s seen on the runway.

“They tend to be pretty risk-tolerant,” Campbell said, explaining that their products are flying off the shelves before a lawsuit even hits.