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Trademark Infringement, Greenwashing Kept the Courts Busy in 2022

The year in fashion law was defined by two phrases: trademark infringement and greenwashing.

At the confluence of both these headwaters was the rising tide of fast fashion, which grew significantly in 2022 as shoppers already accustomed to shopping online shopping during the pandemic, returned to brick and mortar outposts, as well.

Within that world, there was no greater mover and shaker than the Chinese giant Shein, which took the world by storm with unbelievable efficiency and what some would regard as an equally unbelievable disregard for trademark rights.

Shein was sued dozens of times in 2022 by everyone from apparel makers to individual artists, but to date, no legal action has precluded the Chinese juggernaut from sticking to its algorithm-driven calculation for the next fashion trends.

“Shein is a next-generation fast fashion company…it doesn’t simply rely on human designers. It’s watching runway shows and uses an algorithm to determine what is popular in fashion and the algorithm may not be able detect something on the design of the shirt that might be trademarked. It’s entirely possible they didn’t have the systems in place to double-check what its algorithms were copying,” said Susan Scafidi, founder and director of the Fashion Law Institute at Fordham Law School in New York City. “Of course, ‘the algorithm did it’ is not necessarily an excuse. Shein creates merchandise on gathered data. All the artists screaming and screaming are right to, but in a sense, they were copied blindly by an algorithm.” 

Lawsuits against Shein in 2022 included freelance artist Maggie Stephenson, suing for $100 million for design theft; infringement suits by Doc Martens and Stussy, a cannabis clothier called Cookies, which is aiming to be the first to successfully sue the company for not just trade infringement, but counterfeiting. Even the Rolling Stones demanded that the company stop promoting the band’s 60th anniversary due to its poor reputation for treating factory workers humanely.

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At least greenwashing lawsuits were something Shein didn’t have to worry about in 2022.

That luxury wasn’t enjoyed by H&M the fast-fashion titan quickly being supplanted by Shein.

Sweden-based H&M found itself defending against a pair of greenwashing suits in Missouri and New York in November over its “Conscious Choice” collection and another in New York accusing the company of using “false and misleading” environmental scorecards.

When greenwashing lawsuits weren’t taking on fast fashion brands, the aim was often environmental activism.

In November, outdoor apparel brand REI was sued for $5 million for allegedly using PFAS chemicals in its jackets, a choice plaintiffs in a Washington state case say is tantamount to false advertising given the company’s pro-environmental marketing.

Washington, along with California are set to enact bans on PFAS in 2025 and other states including New York are examining similar laws that figure only to increase heading into 2023.

The rules governing what passes for greenwashing are still in their infancy, but some progress was made in creating a workable standard in the fourth quarter of 2022.

In October, the global Sustainable Apparel Coalition announced it was standing by its Higg MSI (Materials Sustainability Index) for rating companies’ sustainability against criticism that it gives incomplete or inaccurate results. Meanwhile in the United States, the Federal Trade Commission announced in December it would be revisiting the all-important Green Guides for marketing for the first time since 2012.

“The sustainability landscape has changed significantly since 2012 and we have identified several areas—from concerns around claim substantiation to the use of third-party certifications—where updated and improved guidance would be most welcome,” Chelsea Murtha, director of sustainability for the American Apparel and Footwear Association, told the FTC board before it voted 4-0 to review the guides.

The year also saw plenty of brand-on-brand trademark accusations.

California shoemaker Vans was especially busy on that front. In March the favorite brand of skateboarders won an injunction against Walmart to cease copying its trademark wave design, only to be back in court later in the year when, its lawyers argued, Walmart simply ignored the order and continued to buy and sell the shoes.

Walmart was also the target of outdoor apparel maker Patagonia, which accused the nation’s largest retailer of trademark infringement by producing shirts with a similar looking trout image. Patagonia also sued Gap for similar use of its trademark fish logo.

There was plenty of in-fighting the denim world where Levi’s, which has been so litigious as to earn the nickname “trademark bully” sued California jeansmaker Hammies for using the red tab design that’s been its mark since 1936.

Fellow denim purveyor Wrangler won in its bid to stop a Turkish company’s line of jeans called ‘W Denim.”

Lululemon began 2022 as the target of a lawsuit by Nike over its Mirror products. Nike claimed Lululemon’s activities “making, using, selling, offering to sell, and/or importing” the Mirror digital workout system and its apps violate six patents issued to the athletic titan between 2013 and 2021.

For the rest of the year, Lulu found itself in a legal back and forth with former partner Peloton over branded apparel in a case that was eventually settled.

There were also plenty of examples of big companies taking on the little guy. Nike sued a pair of YouTube celebrities for modeling footage based on their Dunk series, but also rapper Lil Gnar for his company’s similar actions.

Nike also sued German footwear maker Adidas for infringing on nine of its patents, along with 18 infractions on one shoe alone. Adidas fired back with a countersuit and the footwear giants settled out of court in August.

No year in fashion and apparel lawsuits would be complete without an appearance from MSCHF.

The Brooklyn-based art collective followed up its 2021 success with ‘Satan Shoes’, featuring rapper Lil Nas X, and one drop of human blood in the soles, with 2022’s ‘Wavy Baby’, a take on the Vans Old Skool brand that was absurdly full of unnecessary undulations.

Vans, like Nike in the case of the Satan Shoes, sued MSCHF for copyright infringement. They, too won, getting a cease-and-desist order against the art collective.

These cases tested the rights of free speech in satire vs. intellectual property.

“Sneaker companies are in a constant cycle of riffing on each other,” MSCHF attorneys wrote in what was ultimately a losing argument against Vans. “Standard shoe industry practice is: steal a sole, steal an upper, change a symbol. What a boring use of cultural material. Wavy Baby is a complete distortion of an entire object that is itself a symbol.”

It’s fair to assume the courts will continue to be the number one place the fashion world goes to air its grievances once again in the coming year..