Over the last decades, the fashion industry becomes more and more popular and important, especially, among women. For almost every second woman buying designer clothes or a handbag is a pleasure. The fashion industry is one of the most sought-after and large industries in the world.
In the field of intellectual property, fashion remained in a shadow, but nowadays it is gaining momentum and there is a tendency to isolate protection rights in this industry in a separate institute. Serious attention is paid to the training of specialists in the field of “fashion” law in Europe. For instance, in Italy, France, and United Kingdom and so on, currently there are many universities with Fashion Law programs. Moreover, in legal practice, cases of fashion have been observed recently.
The Marangoni Institute is Europe’s leading fashion and design institute with offices in Milan, Paris and London. Since 1935, the institute has trained three generations of professionals, the number of which exceeds 30 thousand people. The most famous graduates of the Marangoni Institute became the world famous Domenico Dolce, Franco Moschino, Alessandra Facchinetti, Maurizio Pecoraro etc. These people are the property of the institute, Italy and the entire fashion and design industry. The Institute offers a three-year undergraduate program, a one-year master’s program, and one-year programs for people with higher education. In summer, the Institute organizes three-week courses on selected issues of the fashion industry.
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Legal support for the fashion industry is a relatively new area in law, focused on solving everyday legal problems of specialists in this field. In English and American legal literature, this direction was called “fashion” law, in French – fashion law, luxury law, design law, in Italian – the rights of fashion, in Spanish the English term is often borrowed or the Spanish version can also be translated as “fashion” law.
Petro Sabella spoke about the Italian practice of protecting the design and the designer. He said that their country was the center of both the production and distribution of counterfeit goods. The professor added that in the Italian Penal Code there are two articles that are aimed at combating the distribution of counterfeit goods; they include imprisonment for up to four years. It shows that in a country with one of the highest fashion in the world, intellectual property protection is given great attention in this industry.
This industry seems quite young, but it began to form in ancient times. It covers various areas of production, commerce, trade, advertising and other miscellaneous spheres. In order to work in the fashion industry and be successful people need to have hybrid knowledge. People in the fashion industry must understand the ideology of organization, economic and production processes. Many people believe that fashion is a business, not the art. In total, fashion is a business in which the creative value of a product plays an important role.
It is necessary to distinguish between fast fashion and high fashion. Real high fashion is formed only thanks to well-known brands and manufacturers. Every self-respecting fashion brand monitors its reputation through intellectual property protection. Each fashion brand is unique and may require other intellectual property management services to cover different scenarios that it will face. According to the “Fashion law”, high fashion goods are a billion-dollar market, and this is the reason why fashion houses value their brand equity. [1]
Intellectual property protection underlies most European business models in the fashion industry. Europe has always been and remains the center of high fashion. Therefore, in European culture this area has a great importance. In many European countries, design of clothing or shoe, accessories and jewelry etc., may be protected in accordance with national European design rights laws or copyright laws. In USA protection of intellectual property rights in the fashion sector is slightly weaker; it is carried out only through patents and trademarks.
According to the “Millennial bespoke” the development of laws concerning intellectual property protection in fashion has been slower in the U.S. if compared to European countries in the likes of France. France realized the vital role that IP protection had since 1787, and even though at the time there was no such concept as ‘intellectual property’, the royal family stipulated the first law protecting silk manufacturers’ original designs that prohibited any sort of plagiarism in the whole nation. Right a year after that, the UK wrote down their first law protecting textiles. This system was further developed in the rise of industrialization in Europe and enabled the birth of what is known now as haute couture first established in Paris by, ironically enough, an English designer named Charles Worth.
Speaking about the individuality of the design of clothes, it is important not to forget about the fabrics, which is also copyrighted. There was a case when famous designers sued the fast fashion company Forever 21 for copying fabric. This may raise the question of how most of the mass-market brands survive; their things are similar in design and quality of fabric. The answer is obvious like in any field of intellectual property protection, for example Zara or H&M brands change the composition of the fabric or design as much as they will no longer considered plagiarism.
The world of fashion does not stand still. Designers are constantly developing new clothes with some innovations. For instance, nowadays, there is a smart clothing, self-lacing sneakers, and clothing with a colour indicator that speaks about health of people. It is a common belief that in the modern world, brands are constantly fighting for the recognition and love of consumers. Therefore, among the brands that work in fast fashion segment, there is a huge competition.
In fact, the fashion industry is much more complicated than it seems, because ideas go a very long way from implementation to fashion shows and reaching store shelves. Over the years mankind has recognized the need for intellectual property in this field of activity. People often wonder why branded items are so expensive. It also related to intellectual property. Entrepreneurs in the fashion industry, as well as entrepreneurs of other different industries, pay attention to the issue of promoting intellectual property. Thus, they give their objects ownership statues and, as a result, set a price for access to the results of intellectual property which exceeds their marginal value.
How is intellectual property protection important to the fashion industry? As stated in the “Intellectual property protection in fashion business” article, intellectual property rights are the rights governing the intangible innovations of the human intellect. They represent an important body of law in almost every industry including the fashion business due to their ability to protect creations of the mind. Intellectual property protection and the fashion industry move hand in hand as the creations or designs which are accepted as fashion in the industry are considered as the intellectual creations of an individual who owns an exclusive right to protect them. With that in mind, each industrial design asset and the brand that markets that asset within the fashion industry must be protected through intellectual property rights. Therefore, it is imperative for any country’s legal system to promote creativity and protect the intellectual property rights of the creations of the fashion industry.
The fashion industry is a creative industry, so creativity is one of the most valuable assets for designers. Designers of different brands nowadays try to protect their original products. Around the world there are a lot of crafts of the most famous brands. In fact, it is a huge damage for the reputation of well-known brands due to loss of sales and stock value. From an accounting standpoint, stocks should not be long in storehouse. The need to register intellectual property began to arise with the growth of consumer demand for new articles. As for other areas, for modern designers there are four ways to protect intellectual property.
The first one is the registration of a trademark. Many people advocate the view that it is universally recognized as the most effective measure of protection in this area, since it allows providing the most comprehensive protection directly to the brand itself, under which the designer creates many different models, designs of clothes, shoes and accessories etc. This type is not so appropriate for some kinds of fast fashion like jeans collections, because registration of trademarks will take a lot of time and models of jeans will already go out of fashion. Fashion Law says that due to brand recognition and equity that fashion houses develop a bond with their customers. As such, considerable resources are invested in protecting the names and brands through trademark registrations. One of the most typical examples of trademarks in fashion industry is famous Christian Louboutin shoes with their red sole. Red sole is a distinctive feature of this company’s products. However, many manufacturers make shoe soles red. It is obvious that they do it for the best sales. The psychological factor of many people acts so that they buy such shoes because of “prestige”. Christian Louboutin often sues other companies, but not always successfully.
The second one is, undoubtedly, patents. Many brands neglect this type of protection, potentially, because it is not so effective tool of intellectual property in the fashion industry, because fashion is changing fast. In order to obtain a patent it is necessary that a thing possesses some kind of absolutely distinctive feature. Proof of this, given the existence of many brands, will take some time. Just during this time, models of clothes or shoes may become obsolete. Also this type loses its value because some people are outraged that in the European Union it is very simple to register a new patent or industrial design, but, paradoxically, they are not registered as often as it makes no sense to register a model of clothing if another manufacturer only needs to “cut off a couple of centimeters from the bottom” from this model and patent it as its own invention.
In Japan, the situation is exactly the opposite, there is a design law that protects intellectual property in this area, but, unlike the EU, requirements for novelty are much higher, because companies need to “prove that this outfit never existed before, that it is unique”. Thus, the process of granting patents in this area is complicated if it does not stop in principle, because fashion is usually a repetition. This is one of the paradoxical advantages of the difficulties that exist in the field of intellectual property protection in the fashion industry, because each designer can take someone else’s model and “improve” it, and even experts admit that manufacturers of “fast fashion” sometimes very successfully modify high fashion models.
But this kind of protection is appropriate for some classical clothes or bags etc. When brands release a new and especially unique thing, protecting this asset affects profit. If the company wants to patent the finished product, this means that it also wants to patent fabrics, materials, technologies and some secrets of production. Finally, the patent system may be used to protect functional and technical innovation in the fashion industry. For example, in the field of wearable technologies, the Zozosuit uses sensor technology to provide body shape measurements for online shopping. One convincing argument in favour of patents in the fashion industry is recognizing items by shape, material and design etc., for example, Dior bags, Hermes belts, Zimmermann dresses, Channel suits or even “blue” colour of Tiffany. All of these companies have registered their non-conventional items.
The third one is a copyright. Pursuant to the same article, anything that is functional or has a physical function in the real world can never be copyrighted. In the fashion industry, the elements of fashion designs are afforded protected if they meet the requisite levels of creativity, originality, and are fixed in a tangible medium.
It is based on the fact that the design of each particular product is the subject of copyright and is valid throughout the life of the designer and another 70 years after his death. Nevertheless, this type of protection is more appropriate for fabrics, jewelry and the like. In the fashion sphere jewelry gets copyright protection because of decorativeness as well as fabrics get it thanks to prints, lace patterns and embroideries etc. Many lawyers in the world consider that protection of designs of products is impractical. In the fashion industry were several examples of copyright infringement. There is one sample between very famous and respected companies. One company borrowed a jacket design from another and this turned into a lawsuit for a period of seven years. Things like this happen even among well-known brands.
And the last type of intellectual property is trade secrets and know-how. This measure applies only to certain commercially valuable information necessary to make the process of creating and manufacturing fashionable products as efficient as possible. Among the rights to the results of intellectual activity, exclusive and related rights are distinguished. With regard to design, the most applicable form of protection may be the registration of industrial designs. With the help of an industrial design company can register the appearance of a product, for this it must be new and original. But very often the time spent on registration of an industrial design makes it meaningless, because the lifetime of one model can be only six months, and sometimes even a month.
Therefore, in the UK and the European Union there is a temporary registration, which allows companies with a small budget to test a particular model on the market without spending a lot of time and money on its full registration, and also makes it possible for companies where collections change very quickly to protect their goods . The most common examples of this type of protection are the information about technological processes, tissue processing information and methods of production optimization. One of the most illustrative practical examples of protecting trade secrets and know-how in the fashion world is the case of 2014, according to which Louis Vuitton demanded to recover a fine of about 500 thousand dollars from their former employee for the fact that he announced to the new employer – Coach company the secrets of the production of Louis Vuitton Production.
Finally, it would be interesting to mention innovative inventions in the field of fashion like smart clothes or 3D printing. In general, 3D printing will hardly surprise anyone in the 21st century. However, designers are actively using additive technologies trying to surprise the audience with some extraordinary outfits. Smart clothing is clothing that can interact with the environment, receives signals and analyzes information of human health. Usually such clothes are equipped, for example, with sensors for measuring the pressure, heart rhythm or movement of a person. In the world of fashion, electronic textile has recently become popular. These fabrics include digital technologies. Manufactures also think about the comfort of wearing this clothing. Design company “Studio 5050” developed paired “Love Jackets” and “Hug T-shirts”. The first one starts blinking LEDs and make sounds when they “recognize” each other. The latter allows people to feel hugs from a distance using a Bluetooth system.
All things considered, it can be concluded that at the moment there are many ways to protect and protect the rights to the results of intellectual activity and means of individualization in the fashion industry. Each of them should be applied individually, depending on and taking into account specific circumstances, in order to subsequently show its effectiveness. It seems that their use should not be neglected by beginners, as well as by unpopular designers and companies, as world practice shows that with due diligence and perseverance, every actor in the fashion industry can defend his rights in the face of Themis.
