The canning sardines of Rubén Morales, founder of the Blackshore Jewelry brand, are as representative of their rings as the bear is from the jewels of Tous. In porcelain and silver, forming an original ring, the goldsmith tells that this design made it «into the finalist of an international competition in which actress Sarah Jessica Parker» delivered the prize. An Instagram video that accumulates almost 550,000 «likes» caused the piece to go viral. «It was seen in too many places and in the end they copied it to me,» he laments. His case adds to other independent designers who have publicly denounced large fast fashion companies for copying their creations. Without going any further, the Spanish brand of Accessories Ane and Grace went to Shein this summer after seeing the photos of its website, in which its three most iconic necklaces appeared, on the official site of the Chinese giant. It is a struggle for industrial property «like David’s against Goliath,» summarizes Ane Gómez, an entrepreneur behind the brand. And it is often about self -employed, like her and Morales, who have no more resources than their creativity and «many hours of work» on the back to claim in front of the electronic commerce platforms. «This ring was my Top sales design, with which I paid the self -employed fee and continued with the firm. 15 or 20 that I sold a month for a price of between 75 and 169 euros, now nobody buys it for me. He doesn’t know if he is the original or a falsification, ”laments the jeweler. Both he and Gomez had to go to a lawyer to defend their rights. The response of the companies where the copies appear, after sending the corresponding Burofax, is usually to remove the photos of the accessories, although soon they appear in other places. «The ring first came out on pages that he did not know. He also did it on Amazon, who removed it very fast. Soon he appeared in Shein, which withdrew it when we sent the bureaux, and in Instagram accounts of European companies, which had bought it in Aliexpress,» he says. To anticipate this situation and legally shield the designs, «the fundamental thing is that the fundamental thing is to register in the Spanish office. and brands or in the Intellectual Property Office of the European Union, ”recommends Gerard Guiu, general director of the Association for the Defense of the Brand. «It doesn’t matter how big or small you are,» he emphasizes, because «the potential losses you can have make it cheaper to register.» This action «usually around one thousand euros» and «the design has a legal life of up to 25 years, during which the right of exclusive exploitation is maintained,» adds Alejandro Falcón, director of Falcón Lawyers.Plagiarized ring of empty jewelry the fridge. Rubén Moralesque there is no official record does not imply, however, that designers are totally homeless, «although the defense is more complicated,» the lawyer clarifies. In addition to having to prove «originally judicial authorship, it will be necessary to demonstrate that damage to acts of imitation or confusion has occurred.» If the platforms also use their photographs, «there would be a double infraction», because «the author’s patrimonial rights over the images would be violated.»
Inspiration or imitation
From the legal point of view, there is a clear difference between inspired by a design and plagiarism. According to Pablo López, director of brands of Pons IP, «inspiring is lawful» if the new product is sufficiently distinguished from the original. It is considered that it lacks «singular character» when it does not generate «a different impression on an informed user.» This person is «someone with sufficient knowledge of the sector», as a fashion specialist. It ensures, however, that in the General Police Station of the Judicial Police at the moment «no complaint has been registered» against Shein for violation of industrial property rights. This may be due to the fact that brands usually go to the civil jurisdiction before the penalty. copying some later, especially those of independent creators. Unlike the big brands, they are less likely to counterattack «legally, says the demand. Shein’s modus operandi would consist of launching a limited number of copies to verify if the original author detects the infraction. If he claims, he tries to reach an agreement with him or stops production. Otherwise, the scale. A questions from El País about this way of acting, Shein Spain replies that «acts immediately withdrawing the product preventively» when you receive a «legitimate claim.» If you confirm the infraction, take «the corresponding measures» against the person in charge, he says. The designers, fed up, ask for the utmost respect for their work: «It is also a scam to the consumer» who buys deceived, the head of Anne and Grace sentenced.
Cultural appropriation
Recently, the Mexican State of Oaxaca accused Shein of the unauthorized use of indigenous artisanal embroidery in a top, arguing that it was cultural appropriation. Although they have reached an agreement, the question arises from what would happen in Spain if you reproduce typical costumes or any of its elements. According to lawyer Alejandro Falcón, «cultural appropriation is only valid when it falls on protected intangible assets,» as denominations of origin, copyright or industrial designs. The general rule, therefore, could be inspired by them. What is prohibited «is to register as a mark of a brand an official shield, flag or emblem.»
