Design Law in the Fashion Industry

The clothing industry have been calling for stronger worldwide intellectual property protection for fashion designs because they fear major losses from counterfeiting.

In an article written for WIPO Magazine, Dr Fridolin Fischer states “some modern economic theories consider competition to include a dynamic interaction between innovation and imitation: innovation generates superior products imitation makes them available to a greater number of consumers, so a lively imitation process is crucial for dynamic competition. Is this reasonable?” He goes on to say “To answer, we must look at the time taken by the imitator to catch up with the innovator. Does the innovator, after launching the invention, have sufficient time to amortize development costs and generate profit? If the time is too short, then innovators lose their motivation to generate further innovations, and prolongation through legal measures makes economic sense. However, the fashion industry is a particular case. Many fashion aficionados cannot afford the original items created by Chanel, Dior, Versace, etc. Instead, they buy cheaper copies, fully aware that these are not originals. The sale of these counterfeit products cannot be equated to loss of sales of the originals as they primarily target consumer groups that are not in the market for the originals. Certainly, plagiarism can confuse consumers and, in case of inferior product quality, damage the designer’s good reputation. Nevertheless, it could be argued that counterfeit products bring fashion labels more publicity, stimulating nascent fashion trends and increasing demand for originals.” Dr Fridolin Fischer then asks, “In this context, what is the relevance of design law in the fashion industry?”

Clothes are primarily protected by registered design right. In order to qualify for design protection, the design must be ‘new’ and have ‘individual character’. A comparison must be made between the design and what is already in the public domain. However, this must be assessed in the eyes of an informed user. However, as Dr Fridolin Fischer states, “differences between two designs which are of minor importance to a casual observer, such as the arrangement of buttons, the shape of a collar or the length of a skirt, may produce a different overall impression in the eye of an informed fashion user.” However, fashion designers are limited in their scope for creativity and their ‘design freedom’ is restricted, i.e. clothes must be wearable. In 2007, WIPO registered only 27 designs in the ‘clothing’ class. The article concludes that registration only tends to be appropriate for unusual or exceptional designs or features. One must also look at trade mark registration which is important for designers in helping consumers identify the originals from the fakes.

To conclude, it must be submitted that intellectual property rights are vital in the fashion industry to protect those fashion designers whose innovative ideas are essential in this multi-million-pound business.

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