Artist Kesshia Kumari, ‘Kesh,’ alleges infringement by Versace in interview with The Cut
Kesh raises the not uncommon concern of designers that their designs will be or are being ripped off by major labels. In this case Kesh asserts the use of a design based on the look of her own face.
Designers and their brands in this situation are in a dilemma. Should they go to litigation, or do nothing?
Litigation is often not an attractive option. An independent designer may prefer other remedies that avoid the cost and risk of litigation and falling foul of technical defences. The reality is that there are alternatives to litigation, which may also be effective.
At times, negative publicity alone may be enough to force the copier to remove the infringing item from commercial circulation.
This happened when textile designer Rachel Taylor took on Marks and Spencer in an online campaign, following claims that they copied her designs. In that case, Marks and Spencer removed the items from sale immediatel
y, as reported on the website for Anti-Copyright in Design.
Nonetheless, the risk of alleging infringement outside the court system in the UK is that you may tempt an action for defamation and other issues. Designers should be aware of this risk as well.
Know and develop your rights to protect and enforce them
As a first step, designers like Kesh need to know their rights and how to develop them so they fully appreciate their options.
Brands and designers, large and small, need to be savvy about their creative rights. As JWSS Solicitor Francesca Shepherd comments, “The key is to manage rights issues quickly and effectively in order not to diminish the overall brand value. All brands should take time to deal with rights protection before any infringements occur so that they are well placed to take action when they need to.”
As Kesh’s situation demonstrates, knowledge of one’s rights will not always prevent copying. However, knowledge of rights and their protection by the use of design and trademark registration give a designer (and their advisors) a power of communication that the designer is commercially aware and not to be taken advantage of.
Emily L. Mahoney