Intellectual property in fashion

Intellectual property and its protection in the fashion business is one of the main priorities in the activities of designers and fashion houses. In this article, I propose to understand in detail how to protect copyrights, design, and trademarks in the fashion industry.

So,fashion is not just clothes. This is a unique art that reflects the spirit of the times, cultural trends and individual style. It includes not only clothes, but also accessories, shoes, hairstyles, makeup and even lifestyle. Fashion is constantly changing, influenced by various factors such as sociocultural changes, technological innovations, economic factors and the opinions of opinion leaders. However, it also has a history and heritage that can inspire designers and consumers across eras.

Therefore, approaches to intellectual property protection must take into account all of the above factors in determining fashion. During consultations on possible violations of rights to clothing design, we pay attention to trends. How can one understand whether the design of shoes, clothing, accessories is protected, or whether this design can be used by other industry manufacturers in the fashion wave trend?

Copyright in fashion 

According to the general rule, copyright arises at the moment of completion of work on the original product and is essentially confirmed by the fact of the first publication of the product, for example, at a fashion show or on the blockchain (the second confirms the fact on a tangible medium, records the date, time of creation and data of the author for sales in the Metaverse ). This means that the author has the exclusive right to use, reproduce and distribute his or her design.

At the same time, to classically confirm the creation of an original product, it is better to use official registration with the copyright office in the country of origin, which can provide significant advantages in court. It is important to understand that copyright does not protect ideas, but only the final result expressed in material form and recorded on a tangible medium.

Developing the topic of copyright protection in the fashion industry, I draw attention to an essential feature that the result of the author’s creative activity must correspond to – the originality of the created product, i.e. endowed with the personality of the author.

Of course, when deciding whether to register a copyright, the factor to consider is whether society will receive more and better creativity with or without copyright, as well as the economic benefits to the author from such protection.

Copyright infringement fashion

In order to decide whether or not it is worth protecting copyright in the fashion business, it is necessary to consider known cases of copyright infringement in clothing design, taking into account the transience and variability of fashion. It’s common for fast fashion brands such as Shein, H&M, Pretty Little Thing, Zara to take inspiration from the industry’s biggest names, and sometimes directly reproduce certain items. This is due to the lower price offer for fashionable clothing than that of their reputable colleagues and trendsetters.

So, this has been happening for a long time, and for example, companies such as Forever 21, Shein, Zara have faced lawsuits for copyright and trademark infringement when the design is similar to the project of famous designers. At the same time, well-known designers have drawn attention to an important factor in the protection process, that the rules governing copyright inevitably limit the ways in which protection can be applied to a product as an object of industrial design and, in fact, protection extends only to some artistic elements of the design, and not to the whole design as a whole.

Thus, if the design of a well-known brand’s product were protected as an industrial design, the chances of winning would increase significantly.

Examples of copyright in fashion

“Designers cannot claim to champion any sweater simply because they happen to design sweaters. But they can copyright the creative aspects of their work that set it apart from the norm, such as a unique pattern.” – Quote from The Fashion Law Editor-in-Chief Julie Zerbo. “The reality is that in most cases, counterfeiting a dress is perfectly legal,” which is why Amira v. Zara’s case ended in an out-of-court settlement because Zara proved that skinny jeans were “universal, according to their legal representatives, decorative and not distinctive.” Enough for Amira and Zara could act under the protection of rights to corporate identity.

Next, I will give an example of loafers that are now made in a classic design by almost all fashion houses. Loafers are a luxury fashion products – a trend to which an entire article is devoted in the fashion magazine VOGUE dated February 7, 2024. “16 Best Loafer Brands to Bookmark – And Shop! – for Easy, Everyday Elegance” by Alexis Bennett Parker. It follows that quite a lot of famous brands make Loafers under their own brands. Loro Piana, Santoni, Stefano Ricci, Lanciotti De Verzi others.

At the same time, all these loafers are united by a single design and differ only in the corporate style, the trademark, the quality of tailoring, and, of course, the cost of the product itself.

If the first manufacturer of the model, Loafers, had protected the design as an industrial design, now his chances of receiving compensation for violations of rights to the industrial design would be obvious.

Design protection in the fashion industry

Based on the nature of copyright and the desire to develop their fashion business, the designer should pay attention to registering copyrights for patterns, drawings and patterns for creating specific fashion products. It is better to protect a product created on their basis not only by copyright but also in the form of a commercial sample.

So, given that the product subsequently enters industrial circulation, its nature as protection of an industrial design is obvious. Of course, if this result of creative activity falls under the criteria of originality and uniqueness of a fashion product.

In the fashion business, with the help of a promotional sample, you can protect the unique shape of a product, appearance, unique sewing stitch on this product, etc. To determine the possibility of protection as a commercial design, it is important to first conduct a search of previously registered objects.

It is important to understand that copyright protection for fashion designs can be complex and depends on the specific situation and jurisdiction. Companies often use a combination of different security methods to ensure maximum protection for their design creations.

Trademark – brand fashion 

Almost the key role for the development of a fashion business is a registered trademark and corporate identity. The protection includes a logo, verbal TM, combined TM, sound, slogans – all attributes that are used for marketing, PR, sales and demonstration of fashion products and form the Fashion Business Brand.

Of course, protection is carried out on a territorial basis, i.e. in each country separately and is expanding as the fashion business scales.

A registered trademark provides many opportunities for business development to its owner. For example, create a network of stores selling clothing on a franchising basis, take out a bank loan for business development (typical for Western countries), contribute to the authorized capital, and receive profit from using the trademark.

Particular attention must be paid to checking (TM search) the selected trademark for similarity and identity with previously registered or submitted for registration marks. This will avoid conflicts and save business.

How to create a fashion brand?

Considering current trends in the fashion business and trends in copying fast fashion, to create a sought-after clothing brand, you first need to be a creative fashion designer or find and hire such specialists. In the second case, it is necessary to pay special attention to the conditions of copyright protection, confidentiality of cooperation and protection of trade secrets.

In any case, when starting work on creating a clothing collection, it is better to engage an experienced lawyer in the field of intellectual property who will tell you how to avoid plagiarism and not face fines and compensation for violations of copyright and other intellectual property rights when advertising and starting sales of fashion products under a new brand.

Given the fine line between rapidly changing fashion trends, copying and creating truly innovative fashion products, the need for intellectual property rights protection in the fashion business should be clearly defined. This will significantly increase the profits of the fashion business, maintain a positive reputation and take a successful position among competitors in the market. For detailed advice, please contact us by email: info@sion-ip.com