Fashion Law and Intellectual Property: Protecting Designs and Brand Identity in the Fashion Industry
As Coco Chanel famously said, "Fashion is not something that exists in dresses only. Fashion is in the sky, in the street; fashion has to do with ideas, the way we live, what is happening."
As the fashion industry grows more competitive and innovative, both globally and in Malta, safeguarding creative works and brand integrity through Intellectual property (IP) laws is essential for sustaining growth, fostering creativity, and maintaining a competitive edge. Understanding the frameworks that govern these protections is crucial for designers, brands, and legal practitioners.
Understanding Fashion Law
Fashion law addresses legal issues and challenges unique to the fashion industry, covering various aspects of law, including intellectual property, which protects designs, logos, and brand names through trademarks, copyrights, and patents. It also addresses the problem of counterfeit goods, helping brands protect their products from being copied or pirated.
Its primary goal is to protect the creative rights of designers and brands, allowing them to create without fear of misuse. Therefore, ensuring that their innovative designs are legally safeguarded.
As sustainability gains more importance, fashion law now focuses on regulations for ethical production, reducing environmental impact, and ensuring transparency. With the industry's global and digital expansion, navigating trade rules and protecting customer privacy have also become key concerns in this growing field.
Forms of Intellectual Property Relevant to Fashion in Malta
As the fashion scene becomes increasingly dynamic, IP rights play a significant role in fostering a thriving fashion industry by safeguarding the interests of creators on both a local and international scale.
Trademark protection is fundamental in maintaining brand identity and building equity. Trademarks serve as visual markers, fostering instant recognition. Companies often register trademarks for names, logos, and slogans which ultimately provides stronger protection, granting the exclusive right to use the mark in the registered jurisdiction. For instance, Nike has registered its name, the “swoosh" logo, and the slogan "Just Do It."
Copyright law protects artistic designs and creative works, but it also has some limitations in the industry, as it does not cover the functional aspects of clothing, such as the cut or shape. Basic garment designs, like T-shirts or jeans, are usually not copyrightable because they are considered functional rather than creative. This makes it difficult for fashion designers to fully protect their clothing designs from being copied.
A Design patent protects the aesthetic aspects of a product, such as its shape or pattern, rather than its material structure. To qualify for registration, a design must be novel or original. By registering a design patent, you establish a legal claim to ownership, allowing you to prevent others from making, importing, or selling products that incorporate the registered design or something similar. However, their protection is enforceable only in the jurisdictions where the patents are granted.
Fashion companies use trade secrets to protect various aspects of their operations, such as manufacturing processes, supplier relationships, and patented inventions. Unlike patents or trademarks, which provide formal protection, trade secrets depend on maintaining confidentiality, requiring Companies to implement internal controls, including restricted access to sensitive information, non-disclosure agreements, and secure supply chains. Given that the fashion industry operates on a global scale with supply chains spanning several countries, safeguarding trade secrets requires navigating diverse legal frameworks and developing a unified global strategy to protect confidential information.
Protecting Fashion designs
Safeguarding intellectual property is crucial due to the high risk of infringement. IP rights benefit designers in two-ways.
International Agreements Relevant to Fashion Law and IP
In fashion, protecting intellectual property involves navigating international agreements designed to harmonise IP laws across different countries. These agreements provide a foundation for enforcing rights and resolving disputes, ensuring that designers and brands can safeguard their creations worldwide. Some key international agreements include:
i. The Paris Convention for the Protection of Industrial Property (1883) which protects industrial property, including patents, trademarks, and industrial designs, ensuring that member states grant equal protection to foreign applicants as it does to its nationals. Designers can file for protection in one member state and have six-months to claim priority in other member states, enabling global protection for their creations without the need to register in each country separately.
ii. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1995) is an agreement that sets minimum standards for IP protection among World Trade Organisation (WTO) members, covering trademarks, copyrights, patents, and designs. The main key aspects of TRIPS are that it protects brand names and logos, and it allows for the protection of original fashion designs through copyrights or industrial design laws.
iii. The Berne Convention for the Protection of Literary and Artistic Works (1886) provides international copyright protection, safeguarding artistic elements in designs, without the need for formal registration.
iv. The Hague Agreement Concerning the International Registration of Industrial Designs (1925) simplifies the process of registering industrial and fashion designs in different countries through a single application. This is particularly useful for fashion designers seeking global protection of their creations.
Legal Strategies for Fashion Brands in Protecting and Enforcing Intellectual Property
To safeguard intellectual property, brands must adopt a proactive approach to prevent infringement and maintain control over their creations. Some key measures that Brands should adopt include:
● Regularly reviewing and assessing their IP assets, such as trademarks, copyrights, patents, and designs, to ensure they are adequately protected and up to date.
● Maintaining a well-organised IP portfolio ensuring that all logos, designs, and trade secrets, are properly registered, renewed, and monitored.
● Brands should consider trademarking key elements of their identity (e.g., logos, slogans) in all jurisdictions where they operate.
The Future of Fashion Law and IP
Technological advancements are transforming the fashion industry, presenting new challenges and opportunities for IP protection. Two technologies influencing fashion law are; 3D printing, which allows designers to create garments from digital files, raising concerns about copyright and design infringement. Since anyone with access to a digital design file can reproduce a garment, protecting digital designs becomes critical. Currently, there are debates about whether the existing frameworks for design patents, copyrights, and trademarks are enough; and artificial intelligence (AI) which is used to generate fashion designs, complicating questions of authorship and ownership. Under current legislation, only human-created works can be copyrighted, leaving AI-generated fashion designs in a legal grey area.
The Influence of Sustainability in Fashion Law
The emphasis on sustainability is reshaping the fashion law. Brands promoting sustainability may seek protection for eco-friendly innovations, such as new materials or packaging methods, prompting stronger protections, in the form of patents for green technologies and trademarks, for sustainable practices, and stricter anti-counterfeiting measures to prevent low-quality quality that undermine sustainability claims.
As consumer demand for transparency grows, fashion law may need to expand to address issues such as labour rights, supply chain transparency, and the misuse of traditional designs. Designers working with cultural elements must ensure they respect the intellectual property and cultural heritage of indigenous communities.
Conclusion
In conclusion, fashion law and intellectual property are fundamental for the protection and growth of the fashion industry. The legal challenges faced by fashion professionals, highlights the need for comprehensive legal frameworks. By developing a deeper understanding of these legal principles, stakeholders can better protect their innovations.
With the rise of digital technologies and AI, tools like Amazon’s Project Zero for IP protection, have enhanced the ability to combat counterfeits, streamlining the process of identifying and removing infringing content. However, traditional methods such as legal action continue to be vital for complete IP protection.
As the global fashion landscape evolves, ongoing legal reform and vigilant enforcement will be essential for preserving creativity and originality.