Are These Tops Copying Trends or Copying Designs?

This past weekend, I was doing my usual perusal  of online shopping sites like Nordstrom, Lulu’s and of course the ever-trendy Nasty Gal, when I came across two tops that made me wonder where the line between copying trends and copying designs is, because the two tops I came across were copies of ASTR tops I had purchased over the past year. The first top was this pink halter top with a cropped back and buttons down the back from Nasty Gal.

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It’s an incredibly cute and sexy top. And, it looked so familiar to me because I bought an nearly identical if not identical ASTR top from Nordstrom last year.

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The two tops are strikingly similar. Both are flowy tops with high neck halter necks, a cropped back, and 5 buttons that line the back.

And then while I was perusing Lulus and Nordstrom I came across these two tops.

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The one on the left is from lulus.com while the one on the right is from Topshop at Nordstrom. And both look quite similar to this ASTR top I purchased around Christmas time at Nordstrom. The ASTR one being more cropped than the Lulu’s and Topshop versions, but all versions are sleeveless tops with a high neck and a beaded leaf motif along the cutoff sleeves.

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Seeing copied versions of these ASTR tops on websites that could be called ASTR’s peers because ASTR, Topshop, Nasty Gal and Lulu’s all produce trendy, cute pieces that are reasonably priced, made me wonder if the similar versions I had seen this past weekend were the other clothing lines copying ASTR’s pieces or just a copying of trends?

It seems to be a very fine line between copying a specific design and copying a trend. Is the high neck, halter neck top with buttons down the back and a cropped back a compilation of trends in one top or is it a specific design created by ASTR? Is the placement of a beaded leaf motif along the cutoff sleeves simply a trend or is it a specific design? And, when can a contemporary brand like ASTR that isn’t quite as large as Topshop or Nasty Gal assert its intellectual property rights over the pieces it creates and sells?

In the case of the halter neck top, the tops are identical and neither top has an element that the other doesn’t. I had purchased the ASTR version mostly because I hadn’t really seen anything like it out in the marketplace. It was a pretty unique design which ASTR has used several times in other tops, and it is a top that I have always gotten compliments on when I wear it.

So it seems a little too coincidental, that the Nasty Gal top has all the trendy elements that the ASTR top does as well. In my opinion, it would seem that the top is a specific copy of the ASTR top because it is so incredibly identical, down to the details of the buttons. However, the problem is that ASTR wouldn’t really be able to assert any intellectual property rights, since clothing is seen as a useful article, which are not entitled to protection under copyright law and therefore its top wouldn’t be copyrightable and protected from infringement. Furthermore, there doesn’t seem to be any trademarkable or pantentable elements in the top that could protect ASTR from copies. As such, even though the top is an obvious copy of ASTR’s original, it would be unlikely that ASTR could assert any sort of rights against Nasty Gal.

In the case of the beaded leaf top, the Lulu’s version is identical to the ASTR original, save for the fact that the ASTR version was cropped and Lulu’s version was a full length top. The beaded leaf motif on both tops are identical and place along the cutoff of the sleeve on the front of the top. So, again the question is: Is the beaded leaf motif along the cutoff sleeves of a silky top a trend or a design?

In my opinion, the tops are too identical to just be considered a coincidence of two brands selling a top that is trendy. Also, because the ASTR top was in the marketplace around fall/winter and the Lulu’s top recently came into the marketplace, it seems unlikely that Lulu’s was unaware of the ASTR version. However, on the other hand, ASTR doesn’t have a high brand awareness that other brands would be aware of it’s designs and pieces. While it seems to be a studied copy of the ASTR original, again, ASTR wouldn’t really have any legal recourse for the copying, since clothing design is not copyrightable and therefore not protectable.

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The Topshop version has a couple of elements that are different: a full length top, a large open back, and the beaded leaf motif extends to the back of the top. Are these different elements enough to make the Topshop version less of a copy of the ASTR version? I would say, yes. While the two have similar elements, I think the Topshop version of the top is more a copying of a trend, rather than a copying of a design. The Topshop version takes the elements of a cutoff, silky top with a beaded motif and adapts it to its own design by extending the beaded motif and creating a large open back with an added zipper at the bottom.

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It’s a very fine line between copying a trend in the marketplace and copying a design. Topshop’s version of the cutoff top with the beaded motif is more of its own interpretation of a trend rather than a copy of the ASTR version. However, Lulu’s version of the cutoff top is a clear copy since it contains all of the elements of the original version and doesn’t really inject any new interpretation or creativity into the trend. Similarly, Nasty Gal’s version of the high neck halter top is also a clear copy of ASTR’s original design, because Nasty Gal’s version is identical to the ASTR version. Again, there is no new creativity of the use of the trendy elements of a halter neck, a high neck, a cropped back or buttons down the back in its version. Its just simply a copy.

So it seems the answer to the question of what the line is between copying a design and copying a trend, is if the newer version injects any sort of its own interpretation, creativity, or ingenuity into the trendy elements presented in the original version.

Here’s hoping that these clothing lines stay on the side of copying trends, rather than copying designs, because isn’t the essence of fashion about being creative and original?

Beeta J.

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