A photo seen on Instagram recently caught my attention: a lady wearing a pair of denim shorts which appeared at first sight to be made by Dsquared2, yet the caption credited another brand.
I had a look and I found out that a website was selling denim shorts under its own name (this is crucial: not trying to pass off as D2), with a design close to DSQ but very importantly, a red tab where you find the same on a pair of our favourite brand.
Note that I prefer not naming the website as I would feel like a WW2 collaborationist. Each brand will take up the fights they feel are worth taking. Note that some designers actually like plagiarism as they see it as flattering, others are merciless.
However here we are in a situation that is much closer to the lengthy battle between Louboutin and other designers over the right to sell shoes with a red sole.
The question here is: is a branded red tab sewn to the inside of the fly on denim bottoms CAPABLE of legal protection? In other words is it protected by the law of Trademarks and designs?
Note that the red tab with the brand name in white fonts is not a D2 invention, but probably a Levi’s Strauss one, copied and copied again for decades by a multitude of denim jeans makers. What the Canadian designers did differently to everyone else was to move it from the right back pocket to the front fly.
Now of couse I cannot answer that and especially since every country has its own approach. This can be seen in the various Louboutin cases (in Belgium, France, Netherlands, USA…) all ending in different outcomes due to the lack of uniformity in Intellectual property law.
However I think a strong argument in favour of the protection is the following: is confusion POSSIBLE in the mind of an average consumer? We have to remember that IP law often boils down to this issue of people being tricked into buying something thinking they are buying something else.
And with that point of view I would say yes, the untrained eye could very well see the borrower as being the original. Even I, before taking a closee look, nearly got fooled. Me, he who cannot be fooled!