When Fashion Meets the Law: Functionality, Fast Fashion, and the Fight to Protect Creativity

Runway to replica in 48 hours: the new reality of fashion. As Birkenstock loses protection, Brandy Melville takes platforms to court, and dupes flood TikTok, IP law is being tested like never before.

By Ridhi Sofat

August 2025

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Fashion has never moved faster. A look that debuts on the Paris runway today can appear on a global e-commerce site within days - stripped of its luxury price tag, but not always its original DNA. This breakneck cycle, powered by ultra-fast fashion platforms and the reach of social media, has pushed intellectual property (IP) law into the centre of fashion’s most urgent debates.

At its core, fashion law is a balancing act. IP rights are the legal protections granted to creations of the mind – in fashion, that means trademarks, design rights and copyright. They are meant to reward originality, while keeping trends accessible. Yet recent cases show how fragile that balance has become. From Birkenstock’s failure to protect an icon, to Brandy Melville’s battle against alleged counterfeits, to the grey area of today’s “dupe” culture, a single theme emerges: the law is struggling to keep pace with an industry defined by speed and imitation.

The Birkenstock Ruling: When Functionality Overrides Fashion

In February 2025, Germany’s Federal Court of Justice ruled against Birkenstock in its

attempt to classify its sandal as a “work of applied art”, which would give it the same copyright protection as paintings or sculptures. Despite the shoe’s cult status – from orthopaedic staple to Gen Z must-have – the court found its DNA too functional to qualify for copyright.

Birkenstock’s design was born from orthopaedic principles, not from purely artistic choice - and under EU law, this distinction matters. The principle at stake was cumulation, which allows EU designs to be protected under both design rights (up to 25 years) and copyright (life plus 70 years). But to qualify for copyright, a product must show creative freedom beyond function. Birkenstock’s origins in orthopaedic design meant that, however iconic its design became, its artistic claim failed.

The consequences are sharp: with its design rights expired, the sandal’s design and form are in the public domain. Competitors can legally copy its shape so long as they avoid Birkenstock’s name and logo. This isn’t just a legal loss for Birkenstock – it’s a warning to any brand whose products start as functional objects – like Crocs or Dr. Martens. Once design rights expire, without clear artistic distinctiveness, the form becomes free game.

This ruling underscores a hard truth: cultural relevance and commercial success do not transform functional products into copyrightable art.

Brandy Melville vs Temu: When Copying Crosses Every Line

At the opposite end of the spectrum lies Brandy Melville’s lawsuit against Temu, filed in July 2025. The California-based brand accused Temu of selling counterfeit goods with Brandy’s logo and even using identical images from its website. This isn’t inspiration – it’s alleged duplication.

The case highlights a growing legal question: are ultra-fast fashion platforms “just marketplaces”, or are they responsible for what appears on their sites? Brandy argues the latter, noting that Temu controls payments, shipping and advertising, functioning more like a retailer than a passive intermediary.

Here the challenge isn’t whether infringement occurred – the evidence looks stark – but where and how enforcement happens. Brandy is American, Temu is Chinese, and sales are global. Cross-border disputes are notoriously slow and expensive, creating an asymmetry that benefits fast-fashion platforms. Even when the law favours brands, international enforcement can move too slowly to stop the damage in real time

Commercially, what’s at stake is enormous: if courts start holding platforms accountable, it could reshape the economics of fast fashion entirely. If successful, the case could establish precedent for holding marketplaces accountable, potentially reshaping how platforms like Temu and Shein operate. But until then, the delay itself gives copycats room to thrive.

The Grey Zone: Inspiration vs Imitation

Between Birkenstock’s expired rights and Brandy Melville’s alleged counterfeits sits the “dupe economy” – a cultural and commercial phenomenon thriving in plain sight.

A dupe is not a straight counterfeit. It doesn’t carry a fake logo, nor does it claim to be the

real thing. Instead, it borrows the look, silhouette or aesthetic of a popular item, often with subtle alterations, and sells it for a fraction of the price. Counterfeiting, on the other hand, is the illegal act of reproducing a product protected by a trademark with the aim of passing it off as genuine. TikTok has rapidly scaled the “dupe” trend, with influencers showing side-by-side comparisons between a £1,000 designer bag and its £30 high street double. For consumers, dupes aren’t just tolerated; they’re celebrated as clever consumer “hacks”. For brands, they’re a constant erosion of distinctiveness and market share.

Legally, dupes live in a grey area. Under the EU’s Unfair Competition Framework, imitation is permissible unless the original design is actively protected - for example, as a registered design or 3D trademark - or the copy is likely to cause consumer confusion. Proving confusion is costly and difficult – meaning many dupes remain untouchable.

Some brands have fought back creatively and experimented with non-traditional IP. The

KIKO case (CJEU, 2016) offers a striking precedent, showing that IP can extend to all aspects of brand identity. Italian cosmetics brand KIKO secured protection for its store design, successfully arguing that a competitor’s near-identical shop layout could mislead customers into thinking the two were linked. In theory, fashion houses could apply similar logic to packaging, retail environments, or even a store scent – areas where a dupe cannot so easily copy. But for now, dupes exploit the space where legality and morality diverge – accessible for consumers, corrosive for brands.

The Balancing Act: Pros and Cons of IP in Fashion

Fashion IP cuts both ways. On one hand, robust protections safeguard originality, preserve

identity and deter blatant copying. Without them, brands like Brandy risk being drowned out by counterfeits. On the other hand, fashion thrives on reference, remix and reinvention.

Overly rigid enforcement risks stifling the cycle of inspiration that the industry runs on.

The innovation risk is real: if designers fear their ideas will be copied before they can defend them, they may simply avoid bold experimentation altogether.

What’s needed is a framework agile enough to deter clear theft, but flexible enough to permit influence and homage. That balance is what’s missing today.

The Spectrum of Fashion IP - and Why It Matters Now

Taken together, these cases don’t just tell three separate stories - they chart the spectrum of how IP law operates, and struggles, in today’s fashion industry.

1. Birkenstock exposes the fragility of icons rooted in function, and the gap between cultural success and legal protection.

2. Brandy Melville highlights the realities of global enforcement, where the law may be on your side, but borders and delays dilute its power.

3. Dupes showcase the cultural and commercial weight of legal grey zones, where consumer appetite for “the look” meets the limits of the law.

Together, they show why the industry needs a more adaptable IP framework – not just stronger enforcement. The common denominator is speed. Fashion today operates in hours, while the law lags in years. That disconnect leaves vulnerabilities at every stage – from functional icons to global brands to emerging trends – and opportunists are quick to fill the gap.

The fight over fashion IP is no longer a niche legal debate. It cuts to the heart of what designers feel safe creating and what consumers feel entitled to buy. The Birkenstock ruling confirms that functional roots cannot be dressed up as art. Brandy’s lawsuits push the frontier of how far platforms can disclaim responsibility. The dupe phenomenon shows how law and culture clash in the grey space between homage and theft.

Together, they chart a future where courtrooms may shape creativity as much as ateliers do. Unless IP law evolves at the speed of fashion, originality risks becoming just another fleeting trend — copied, commodified, and gone before its time.