Canada: Fashion icon pays up in copycat spat

A struggling Toronto fashion label is getting an undisclosed financial settlement from fashion icon Diane von Furstenberg for appropriating the design of their vintage-looking, tea-dyed, floral jacket.

Following weeks of negotiations that pit the Mercy label against the New York-based fashion designer, a deal was tentatively reached yesterday when von Furstenberg agreed to compensate designers Jennifer Halchuk and Richard Lyle for knocking off their jacket.

Von Furstenberg, who was unavailable for comment, is the president of the Council of Fashion Designers of America, and is in the front lines in the battle to create legislation, called The Design Piracy Prohibition Act, aimed at thwarting those guilty of the very infraction of which she is accused.

The popular Mercy jacket, introduced in the label's spring 2008 collection, sold for about $300.

"That jacket had our fingerprints all over it," says Lyle, particularly, "the little design gestures that are on the inside."

Halchuk and Lyle have been partners in their business for 15 years and have an enviable reputation in Toronto for design innovation with a vintage sensibility.

The von Furstenberg jacket, which debuted this spring, retails for about $1,000. It captured attention when Jessica Alba wore it on the cover of Elle magazine and when it showed up in an episode of The City and then again in an episode of Gossip Girl.

Last month, the remarkable similarity between the two jackets was revealed by Toronto journalist Nathalie Atkinson. The story was quickly picked up by bloggers including fashion copycat watchdog Counterfeit Chic.

It was beyond coincidence. Both had the same seamed sash with floppy asymmetrical bow, same loose sleeves with elastic hem, same quirky darts at the elbow and same drawstring in the back lining. Even the floral fabric was similar.

That's when the chintz hit the fan.

Von Furstenberg's response was swift. She fired the staff member accused of lifting the Mercy design and immediately initiated negotiations with the Canadian designers. "Everyone wanted this to settle quickly," Halchuk said.

"I am devastated," von Furstenberg told Fordham University law professor Susan Scafidi, who operates Counterfeit Chic, "but this can be a lesson for everyone."

"I will do what is necessary to do, and if indeed there was an infringement, I will compensate and will use this example to make sure this doesn't happen again – not just for me, but for everybody," the 62-year-old designer continued.

Mostly Halchuk and Lyle resent the attention von Furstenberg gained for her version of their jacket. "That's what's making me crazy," Halchuk said.

As a repeat victim of design theft, von Furstenberg knows all too well the sting of being copied. Her trademark '70s wrap dress, for example, has been ripped off for decades.

Just two years ago she went after the fashion retailer Forever 21 because she felt it had crossed a line by manufacturing a dress that was too much like one of her own.

According to Counterfeit Chic, "Diane, who has suffered at the hands of career copyists herself and has been a determined proponent of U.S. legislation to extend intellectual property protections to fashion designs, immediately sought to get all of the facts and to reach out to the Mercy duo." She planned from the beginning to voluntarily compensate the Canadian designers for the unauthorized use of their work.

But Scafidi qualifies that the incident did not involve copyright violation because only prints and surface treatments are subject to protection and the von Furstenberg pattern and the Mercy floral are different.

What is at the heart of this matter is the design infringement – the precise infraction at the core of the proposed legislation.

Yesterday at Mercy's John St. studio, the phone rang. It was the designers' New York lawyer calling to notify them a deal was imminent – conditions would be met that included an undisclosed compensation and the promise of a joint statement explaining the details in the case of the twin jackets.

"The proceeds will not change our lives but it will help our company," explains Halchuk "(But) this incident has strengthened our belief in our aesthetic."

While they say they have no animosity for von Furstenberg, they have one question for the design assistant who stole their jacket: "As you were tearing it apart with seam rippers, did you at least appreciate the effort and the workmanship?"