The primary competitive advantage for many businesses, including those in the fashion industry, is innovation. So where does intellectual property (IP) fit in? In this article we explore the various forms of IP relevant to the fashion industry and why this is important for brands.
When breaking into the fashion industry at any level, understanding and protecting IP is critical to success.
Take luxury fashion. Fashion houses invest considerable time (often months) and money in preparing pieces for the runway at the worldwide fashion shows. For haute couture pieces, garments can take even longer to create. When these garments are released for sale, they come with a high price tag. Due to the fast-paced nature of the industry (and even more so with fast-fashion), high-end designs are quickly replicated by high street and online brands to create pieces affordable for consumers. With the instantaneous nature of the Internet, with the ability for catwalks to be live-streamed on social media, fashion designs can now be viewed, replicated, and marketed in a matter of weeks and sometimes even days.
We explore below various IP rights that fashion brands can benefit from in order to protect their fashion designs.
DESIGN RIGHTS
Design protection is key to the fashion industry. Due to the fast-pace nature of the industry, with many designs being made each season (particularly centred around the various fashion weeks, as well as for fast fashion), design protection is an effective way to protect new fashion creations. With registered design protection, brand owners can seek to prevent third-parties from copying the designs, or even coming up with highly similar designs independently.
Registered designs protect the unique appearance of a product, rather than what it is made of or how it functions. Specifically, design protection may protect the product’s shape, configuration, pattern, or ornamentation. Similar to a patent (which protects inventions), in order to qualify for registration, designs must be novel or original, meaning it cannot have been done before. However, although registering one design is a relatively smooth and inexpensive process, registering designs in a considered manner for each new piece would be costly and take time. This is not always beneficial for fashion brands turning over up to hundreds of designs each season. For registered design protection, fashion brands may wish to select best-selling products, and those which are likely to have longevity, to make this worthwhile.
The EU and the UK have registered and unregistered design rights that provide protection for garments and accessories as a whole. Registered designs are key to protecting designs which may be more valuable to fashion brands, including classic designs which have longevity, without being discarded after the season. These registrations are valid for up to 25 years.
Conversely, unregistered design right arises automatically, which is extremely beneficial for fashion brands creating lots of designs each season. Before Brexit, there was a harmonised unregistered design right for the UK and EU; in large regard, this has continued. Unregistered designs offer protection for a shorter period of time than registered designs (3 years) and are harder to enforce as you need to show copying. However, the duration of the right may not matter in many instances, where designs are only made to last for a season. Unregistered protection can also be useful for brands to test-market new designs before deciding whether to register them. Where a design is more functional than aesthetic, a further UK unregistered design right also affords protection against copying.
TRADE MARKS
Trade marks are at the heart of protecting fashion brands. Trade marks enable consumers to identify and associate with a company. A strong trade mark helps consumers instantly recognize a brand, even without seeing the brand name. Take, for example, the interlocking “G” of Gucci or Chanel’s “C” mark. When consumers see a recognised trade mark, they have certain expectations regarding the quality of the product. Trade marks do not only protect a brand’s right to revenue but can also help consumers distinguish between genuine products and counterfeit products.
Traditionally, trade marks include brand logos or as well as the brand name or slogan. However, non-traditional trade marks include colours (such as Louboutin’s red shoe sole), patterns, and shapes.
While registration of a trade mark is not mandatory, registration provides valuable rights and protection. Registered trade marks help delineate the brand’s rights and receive nationwide protection and can be used to protect the brand against third-parties seeking to use their brand.
Trade marks can also be licensed to third parties, providing an additional source of revenue for fashion brands.
COPYRIGHT
Copyright can also be key to protecting fashion items. As with unregistered designs, copyright protection arises automatically upon the creation of the work and does not need to be registered in order to receive protection. Copyright protection lasts for the life of the ‘creator’ plus 70 years. This is particularly beneficial for timeless fashion pieces.
The scope of UK copyright protection post-Brexit is, to an extent, in flux but copyright can be a powerful tool in both the EU and the UK. Copyright can protect certain patterns on fashion garments. Copyright can also provide protection beyond the fashion products, including protecting the labels on garments, including inside the garments, as well as the sales labels.
PATENTS
Patents may not immediately spring to mind when considering the fashion industry. However, patent protection can be relevant for fashion brands in various ways. This includes technical material, such as a material which detects diseases. Patents could also protect a fabric made using non-traditional elements, which could put a fashion business ahead of competition. Patents may also apply to a unique manufacturing method such as 3D-printed clothing or spray-on garments (discussed further here).
Italian company Grindi invented an innovative fabric made of cork, said to be as smooth as velvet, light as silk, washable, unscratchable, stain-resistant, waterproof, and fireproof. After testing and codifying the treatment, Grindi discovered that the special fabric could be used in the manufacture of clothing and footwear, and it sought international patent protection in respect of its unique product in a large number of countries.
Patents can take a long time to be registered and are therefore not always the most efficient way to protect IP rights. However, if a fashion brand has a new and inventive process to make or incorporate into its product, a patent could be the best way to ensure the exclusive right to use the invention for 20 years.
Having considered design rights, trade marks, copyright, and patents, it can be difficult to determine which rules apply in relation to the protection of ideas and concepts. Indeed, a variety of IP rights often need to be considered for an effective fashion brand.
TRADE SECRETS
Whilst not as widely known or considered as the above rights, trade secrets can be an effective tool for fashion brands can protect their core know-how and provide a competitive edge.
Trade secrets cover information that fashion brands do not want to share with competitors. For example, this could include the manufacturing process, certain characteristics of a fashion product, or even information about a country where the company wants to establish itself to obtain an economic advantage.
Contrary to other IP rights, trade secrets are, if protected properly, and always kept secret, have the potential to be protected forever.
CONTRACTS
Contracts are key for fashion brands when commercialising their products.
This includes controlling the supply chain through robust supply contracts. Non-disclosure agreements (NDAs) are also key to protecting brands before disclosing confidential information to third-parties, such as product designs or know-how.
In-house legal teams should co-ordinate with their marketing teams to ensure that the correct contracts are in place when engaging with third parties for marketing, such as influencers, to ensure that brands can retain control of their brand image when collaborating.
The fashion industry invests significant capital each season to create new and original designs. IP rights are one of the most important assets of the fashion industry and should be a key part of every fashion brand’s business plan. Speak to our fashion team for more information.
