Copying fashion design: what risks do companies and designers face?

When can a design also be protected by copyright?

Three years for an unregistered design; up to twenty-five years for a registered one. Copyright operates on an entirely different timescale: within the European Union, protection generally lasts for the author’s lifetime plus seventy years after their death. And unlike registered design protection, copyright does not arise through filing or registration.

This is one of the principles underpinning the Berne Convention for the Protection of Literary and Artistic Works: the enjoyment and exercise of copyright cannot be made subject to any formality [Article 5(2)]. As a general rule, the Convention also provides for a minimum term of protection equal to the author’s lifetime plus fifty years (Article 7), while allowing individual States to provide longer terms. Within the European Union, that period has generally been extended to seventy years after the author’s death.

For copyright protection to arise, however, it is not enough for an object to be new or aesthetically distinctive. Under EU law, the central requirement is the originality of the work, understood as the author’s own intellectual creation in which their free and creative choices are expressed.

This is precisely where the Italian position on design becomes more complicated. Article 2(10) of the Italian Copyright Act (Law No 633/1941) protects “works of industrial design that possess in themselves creative character and artistic value”. Alongside creativity, therefore, Italian law continues to require an additional element: “artistic value”.

For years, Italian courts have sought to establish that requirement by reference to factors regarded as objectively verifiable, such as recognition of the work within cultural circles, its exhibition in museums, publication in specialist journals, the receipt of awards or the particular value acquired by the work on the market.

The Moon Boot litigation is probably the best-known example. In recognising the product’s artistic value, the Italian courts also attached importance to the recognition it had received in the design world and its inclusion in museum collections. The question was therefore not merely whether the designer had made creative choices, but whether those choices had subsequently received sufficient external recognition to distinguish the product from ordinary industrial output.

This distinction has long created difficulties. In “Design and “regulatory schizophrenia”: when the true meaning of Art gets lost in the mesh of the Law”, we had already highlighted the difficulty of reconciling the Italian requirement of artistic value with the approach developed at European level. Why should a work of design have to satisfy an additional requirement that does not apply to other copyright-protected works?

The issue became even more significant following the judgment of the Court of Justice of the European Union of 4 December 2025 in Joined Cases C-580/23 and C-795/23. The Court clarified that a work of applied art does not need to reach a higher level of creativity than other types of work in order to qualify for copyright protection. The test remains originality: the question is whether the object constitutes the author’s own intellectual creation resulting from free and creative choices.

The judgment also directly addresses how that assessment must be carried out. Originality must be assessed by reference to the circumstances existing at the time the work was created. Subsequent circumstances, such as the recognition later achieved by the work or its inclusion in exhibitions or museum collections, cannot retroactively determine whether the work was original at the time of its creation.

The tension with the approach traditionally adopted in Italy is therefore becoming difficult to ignore. The very factors that have long been relied upon as indicators of artistic value – cultural recognition, museum exhibitions, awards or critical acclaim – do not correspond to the EU-law test used to determine the originality of a work. Margherita Manca examined this development in “The Court of Justice of the EU revisits “authorial creativity” applied to design”, focusing specifically on the 2025 judgment.

This does not, however, mean that “artistic value” has disappeared from Italian law. Those words remain part of Article 2(10) of Law No 633/1941. The question is how much independent interpretative significance can still be attributed to that requirement without imposing a higher threshold for copyright protection on works of design than EU law permits.

For fashion companies, this is far from a purely theoretical debate. If a product qualifies for copyright protection, that protection may last for decades and does not depend on registration of the design. Documentation of the creative process, the choices made by the designer and the ability to demonstrate what scope for creative freedom existed when the product was developed therefore become particularly important.

Creativity, however, is not the only factor capable of giving the shape of a product legal significance. A shape may also be protected because the public has come to recognise it as indicating that the product originates from a particular business. This is where design and copyright intersect with trade mark law.

Dupes, copies and infringement: how close can you get to a famous product?

At the end of 2024, a handbag sold online through Walmart went viral in the United States under a nickname that said almost everything: the “Wirkin”. It cost a fraction of the price of an Hermès Birkin and openly echoed its appearance. It consequently became one of the most visible examples of the dupe phenomenon.

But what exactly is a dupe? The term, derived from duplicate, is used primarily in fashion and cosmetics to describe a product deliberately designed to evoke another, better-known product, often one that is considerably more expensive. It is not, however, a legal category and, most importantly, a dupe is not automatically unlawful.

The same applies to the word “copy”. In everyday language, it is enough for two products to look alike. Legally, however, the real question is what has been copied and whether that element is protected. It may be the shape of a handbag, a decorative pattern, a copyright-protected work, or a sign that consumers associate with a particular business. Infringement of an industrial property right, moreover, does not necessarily require the complete reproduction of a product and does not always depend on the copying of a logo.

The first question to ask when a dupe reproduces the appearance of a fashion product concerns the design itself. If the design remains protected, its owner may take action against products that do not produce a different overall impression on the informed user. This is the form of protection discussed in the first section of this article and it concerns the appearance of the product irrespective of whether the brand name is reproduced.

The same product may also, where the relevant requirements are met, benefit from the copyright protection discussed above. A dupe can therefore interfere with several different rights even if it is not presented to consumers as a counterfeit product.

The US “Wirkin” case is useful in illustrating the phenomenon, but it does not tell us what the position would be under Italian or EU law. The Birkin case is therefore more interesting when viewed through the disputes decided by Italian courts. Together with the Kelly bag, it also illustrates another important development: over time, the shape of a product may itself become a trade mark.

This happens when consumers no longer perceive the shape merely as an aesthetically distinctive design, but associate it with a particular commercial origin. The concept of secondary meaning may then come into play: a shape that did not initially possess sufficient distinctive character can acquire it through use and market recognition.

The case is particularly significant because the Birkin and Kelly shapes were recognised in Italy as capable of valid protection under trade mark law. Following a ruling by the Italian Supreme Court in 2022, the Florence Court of Appeal, in judgment No 489/2024, upheld the validity of the three-dimensional trade marks relied upon by Hermès and found that the handbags at issue infringed them.

This explains why simply omitting the name “Hermès” from a competing product does not necessarily resolve the issue. If the protected trade mark consists of the shape itself, it may be the reproduction of that shape that amounts to infringement. A three-dimensional trade mark is nevertheless subject to different requirements from a design: its validity does not depend on novelty and individual character but, among other things, on its ability to distinguish the goods of one undertaking from those of others.

There are also specific limitations. Article 9 of the Italian Industrial Property Code prevents registration as a trade mark of signs consisting exclusively of the shape or another characteristic resulting from the nature of the goods themselves, necessary to obtain a technical result, or giving substantial value to the goods. A shape mark, which can potentially be renewed indefinitely, cannot be used to perpetuate every possible monopoly over the shape of a product.

Iconic products raise a further issue: the reputation of a trade mark may extend the scope of its protection. In the case of marks with a reputation, protection does not always depend on the existence of a likelihood of confusion in the traditional sense. Use without due cause may also be actionable where it takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark. This is the broader protection afforded to reputed trade marks.

Finally, unfair competition may also be relevant. Article 2598(1) of the Italian Civil Code includes, among other forms of conduct capable of creating confusion, the slavish imitation of a competitor’s products, where the relevant requirements are met. This protection is distinct from both trade mark and design law: similarity alone is insufficient, and the assessment must focus on whether the distinctive external features of the competing product have been reproduced in a way that is capable of causing confusion as to commercial origin.

This is why there is no single answer to the question whether a dupe is “legal”. The first step is to identify what has been imitated and what rights protect the original product. The same handbag may be legally relevant as a design because of its appearance, as a copyright work because of its creative features, and as a trade mark because its shape has become a sign through which the public recognises the brand.

This overlap of rights also creates difficulties from the other side of the equation. When a company commissions a designer to create a collection, it is not enough to determine who will own the rights in the finished product. It is equally necessary to understand what liability the person creating the product may incur if they use shapes, patterns, images or other material that is already protected by third-party rights.

Ownership and liability therefore become two sides of the same relationship: who acquires the rights in the new design, and who is liable if that design infringes pre-existing rights?

What are the risks for designers and companies when a product copies a competitor?

What are the consequences for a designer who copies someone else’s work, even unintentionally? And what happens to the company that places the resulting product on the market?

In the fashion industry, the issue is less remote than it may appear. Designers and style departments work by observing trends, archives, photographs, vintage pieces and earlier collections. The end result can therefore come close to an existing product even where nobody deliberately set out to copy it.

Saying “I didn’t know it existed” does not carry the same legal weight under every type of intellectual property right. In the case of an unregistered EU design, it may be decisive. The right holder can prevent the contested use where that use results from copying the protected design; by contrast, use is not regarded as resulting from copying where it results from independent creative work by a designer who may reasonably be thought not to have been familiar with the earlier design (Article 19(2) of Regulation No 6/2002).

The position is different for a registered EU design. Protection does not depend on proof of copying, and the creator of the later product cannot defend a claim simply by showing that they were unaware of the registered design. What matters is whether the contested design produces a different overall impression on the informed user, taking into account the designer’s degree of freedom.

In copyright law, by contrast, lack of knowledge of the earlier work may affect liability and the assessment of damages, but it does not operate in the same way as the specific independent-creation rule applicable to unregistered EU designs. For a designer, therefore, saying “I had never seen it before” may have very different consequences depending on the right being asserted.

When litigation begins, moreover, the issue does not necessarily concern the company alone. The designer, employee, external professional and company may all become involved in the same dispute, depending on their respective conduct and the contribution each made to the infringement.

Where several people are responsible for the same harmful event, the rules on joint and several liability under Article 2055 of the Italian Civil Code may also apply. This does not mean that every employee or consultant is automatically liable merely because they participated in the project: the actual contribution made by each individual to the conduct complained of must be established.

It is therefore anything but secondary to determine who conceived the product, what instructions were given, which references were used and what checks were carried out before the product was placed on the market. For an employee or designer, an allegation of plagiarism or infringement can therefore become a personal issue as well as a corporate one.

The situation is different again where the company itself instructs the creative professional to “get close” to a competitor’s product. Similarity arising during an independent creative process is not the same as a brief expressly identifying a model to be reproduced. Retaining briefs, drafts, research materials and intermediate stages of the design process can therefore help reconstruct how the disputed design was developed.

Risk should be managed before a product enters production. Where an external professional is engaged, the contract can address representations regarding originality, the use of third-party material, the checks that must be performed and the allocation of responsibility if a dispute arises.

Liability and ownership, however, are separate questions. Once it has been established that the new design can lawfully be used, it is still necessary to determine who owns the relevant rights. Here too, the answer depends both on the relationship with the creative professional and on the particular intellectual property right involved.

For commissioned works, the scope of the engagement is particularly important. Italian case law has recognised that where the creative activity itself forms the subject matter of the commissioned and remunerated service, the economic rights may vest in the commissioning party within the scope of the purpose and subject matter of the contract. Paying for creative work, however, does not necessarily mean acquiring every possible right in everything created during the relationship.

We examined this distinction in “What Rights of Use Does the Commissioner of a Creative Work Acquire?”, including in light of Italian Supreme Court judgment No 19335/2022. Determining the extent of the commissioner’s rights therefore requires an examination of what the parties actually agreed and of the creative activity that formed the subject matter of the engagement.

For a fashion brand, its relationships with designers, employees and external collaborators must therefore address both the acquisition of rights and the risk of infringing third-party rights. The parties should clearly establish what is being commissioned, what uses the company is entitled to make of the resulting work, who may apply for registration and what warranties accompany the work delivered.

Intellectual property in fashion, therefore, is not only about what happens when someone copies a product that is already on the market. It starts much earlier, inside the design studio: with how the creative process is documented, which references are used and how the relationship between the company and the designer is structured.