Actress and model Ratajkowski launched her swim line, Inamorata, last week and Fernandez immediately sent a cease and desist letter citing EU design registrations.
After a week of teasing her new swimwear line to her 15.6 million followers on Instagram, model and actress Emily Ratajkowski launched a collection of six feminine and retro bathing suits called Inamorata Swim on November 16. One day later, New York swim and ready-to-wear designer Lisa Marie Fernandez sent her a cease-and-desist letter in regards to two styles which Fernandez says closely resemble two silhouettes she first released over three years ago.
In the United States, there is no copyright protection for physically functional items, including clothing (ornamental aspects of functional items, jewellery and fabric prints are among the exceptions). But since Inamorata Swim ships internationally, Fernandez invoked two European Union Community Design Registration certificates that she registered in May 2015. The registration grants her a monopoly to supply, import, export or deal in products incorporating the designs within the EU until 2020, after which she can apply to extend her registration for a maximum of 25 years. She says has 21 designs registered in the European Union and 20 registered in Australia.
A representative for Ratajkowski and Inamorata Swim declined to comment.
“While it's advisable for non-European designers to take advantage of registered design rights in Europe, the scope of those rights is limited,” said Susan Scafidi, professor of fashion law at Fordham Law School and founder of the Fashion Law Institute. “In other words, unfortunately for designers seeking to shore up the minimal intellectual property protections available for fashion in jurisdictions like the US, both protection and enforcement are country by country. Items that may infringe in one market can simply be diverted to another. In other words, global IP protection is like a patchwork quilt — and in the case of fashion designs, one with lots of holes.”
“Because of technology, we are really entering an era of accountability in so many ways,” said Fernandez, who discovered the similarities between her off-the-shoulder Leandra bikini ($595) and multi-bow Triple Poppy maillot ($455 to $535) and Inamorata’s Vulcan top ($80) and Cardiff suit ($160), respectively, through Instagram.
In the past, Fernandez has sent cease and desist letters to H&M. And after press coverage of alleged copying by Solid & Striped and Australian retailer Cotton On, she says those retailers pulled the offending product from sale. She has never had to escalate the complaint further through the legal system. “[Copying] is constant and we are going full force with it,” said Fernandez, whose line is available at 180 doors worldwide.
Ratajkowski told Vogue.com that the triple bow style, one of the suits named in Fernandez’s letter, was inspired by an image of Stephanie Seymour from a vintage issue of Sports Illustrated magazine, where the bows were tied along the back of the suit.
Lisa Marie Fernandez gave Inamorata Swim until November 22 to respond to its letter before initiating legal proceedings. Recently, Aquazzura’s complaint against Ivanka Trump’s footwear line, produced by Marc Fisher, went to trial. The Italian designer brand alleged that Trump’s red fringed sandal used its trade dress, a form of trademark protection for items that are identifiable with a certain brand. Both parties agreed to drop the case this month. The terms of the settlement were undisclosed.