BURNING QUESTIONS
To cater for today’s growing consumer culture of ‘see now, buy now’, fast-fashion retailers have prioritised speed, enabling them to react quickly to trends and ship new styles into stores as often as twice a week. Not only does this business model work, it’s unbelievably successful. Ortega has a net worth of $76.4 billion and Zara is the world’s 53rd most valuable brand. LVMH’s former-fashion director, Daniel Piette, once called Inditex “possibly the most innovative and devastating retailer in the world”. With over 2,100 stores worldwide, Zara along with its fast-fashion contemporaries pose a real threat to high-end designers. How IP rights can help Given that an essential element to the fast-fashion business model is copying, a designer will naturally turn to IP law to seek protection. Designers can seek to protect their designs and brands through a combination of registered and unregistered rights. Registered rights such as trademarks, registered design rights and patents effectively provide the holder of such rights with an exclusive monopoly over the subject matter of the right. On the other hand – and provided the necessary criteria is met for the following rights to subsist – unregistered rights, such as copyright and unregistered design rights, only protect the right-holder to the extent that he or she can prove that his or her design or artistic work was copied rather than developed independently. Either way, the enforcement of these rights is often not straightforward for the right-holder, especially in the fast- moving world of fashion. The three most relevant IP rights to the fashion industry are set out below.
often difficult to prove in practice, and copyright won’t protect the underlying design itself, so it can’t be used to protect against the copying of the actual design. To complicate matters further, following the United Kingdom’s vote to leave the European Union, agreement will be needed on how far Community trademarks and Community design rights should continue to apply in the United Kingdom after Brexit; this could mean that in future, designers will have to rely solely on relevant UK IP rights in order to protect their businesses in the United Kingdom. While the rights set out above clearly provide ways for designers to protect different aspects of their business, the difficulty that many designers face is: (i) in respect of registered rights, knowing which designs are worth applying for registration for (given the time and cost, it is only worth applying for registration in respect of those designs which they think are going to be particularly iconic, stick around for several seasons or set them apart from everyone else), and (ii) in enforcing their rights against infringers, in terms of the cost and time involved in litigation. This is especially the case for emerging designers who have fewer resources to devote to expensive litigation. Up-and-coming jewellery designer Eva Fehren initially succeeded in legal battles against several copyists who sold imitations of her “X” ring, but has since decided to drop this strategy. She stated that “to be spending such a big portion of our budget on legal fees when we should have been growing our brand was very difficult”. Moreover, retail giants appear to remain unfazed even when they have been caught red-handed. Forever 21 has weathered over 50 legal
Trademarks Trademarks essentially protect brand names and logos. They are helpful in protecting the goodwill which a designer or fashion house has built up in their business. Often consumers are as likely to buy clothing on the basis that it is produced by a particular designer or brand that they are loyal to, as they are to simply buy clothing because they like the design. However, while trademarks can be used to protect an overall brand, they cannot be used to protect the actual design of an item of clothing per se . Design rights There are four types of design right: UK registered and unregistered, and Community registered and unregistered. Each protects different aspects of a design and has subtly different criteria for subsistence and different tests for infringement. Broadly speaking, Community resulting from its features such as lines, contours, colours, shape and texture, provided that the appearance is new and has individual character. UK design rights protect the overall design of the shape or configuration of the product. Design rights are the most obvious IP right in terms of protecting fashion designs, but even though registration is relatively inexpensive, it is not practicable or particularly useful to register every piece in a collection. Copyright Copyright protects original artistic works, such as sketched-out designs, so that the copyright owner potentially has a claim against anyone who he or she can prove copied that sketch. However, this is design rights protect the appearance of a product,
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