Intellectual Property - How it does (and doesn't) protect Fashion Brands

By Hannah Schmidt-Rees

Now, I’ve written about Counterfeit fashion (read it here!), and whilst Intellectual Property is related, it’s in a league of its own. It’s a legal method for fashion brands to protect their unique garments and brand identity, but fashion is a difficult industry to maintain and protect. Get ready for a little bit of legal talk, but this topic is incredibly important for anyone in the fashion industry, or even anyone in any creative industry.

What is Intellectual Property?

Intellectual Property is a collection of rights and entitlements that gives creators the control over an intellectual asset, the right to make, reproduce and commercially distribute certain assets (creating a ‘monopoly right’, in addition to licensing and giving permission to exploit and licence the copyrights. It can cover; brand knowledge (including the brand’s history and reputation), as well as the brand’s logo, name and original products. 

Whilst intellectual property is not considered ‘real’ property, it is an asset with usefulness due to its specific qualities that gives a brand it’s value. Intellectual property creates an incentive for individuals to create original work for the benefit of society. 

What does Copyright, Trademark and Design protect?

Copyright, Trademark and Design are forms of Intellectual Property, which in different ways protect the creative works created within the fashion industry. 

Copyright – 

Different to Trademark and Design, Copyright is applied automatically to a completed work without any registration by an official register. The work does not need to be completed to be protected by the Copyright Act 1968 (Cth), which covers works ranging from; literary, artistic, film and audio. It does not cover; concepts and techniques and names/slogans, however this can be covered by a Trademark, another type of Intellectual Property. Only covering the lifetime and 70 additional years after the creator’s death, a copyrighted work becomes part of the Public Domain, to be used by society as it’s now part of society’s culture and creative capital.

Trademark – 

A major commercial aspect of Intellectual Property is a brand’s logo, name, colour, shape, packaging, signature etc., which automatically tells consumers about a brand’s reputation and its products/services. This ultimately results in a Trademark, which is a ‘badge of origin’ to distinguish one brand from another and a formal way that a brand’s value is managed. 

Trademarks can be registered to become legally enforceable (in 45 countries under the Free Trade Agreement), giving the owner exclusive rights to commercially use, sell and license trademarks on their offered products and services. Trademarks can be similar to one another and monopolised by one owner. Once a Trademark application is legally accepted, it’s applicable and renewable for 10 years. 

Design – 

Covered by the Designs Act 2003, Design protects the way a product looks, including it’s; shape, pattern and presentation. Design gives the creator the right to protect the design which has commercial or industrial use. Unlike Copyright, which only covers artistic work, Design is registered to a design that is solely used commercially and for mass-produced products. A work cannot be covered by Copyright and Design at the same time. Similar to Trademark, a registered Design can be covered for ten years, renewable after the first five years. 

How is intellectual property important to the fashion industry?

In general, Intellectual Property is highly relevant to the fashion industry, as it uses creativity/ideas to create and sell commercial products. In addition, fashion brands are examples of reputation/a marketed lifestyle being a major selling point for a brand’s products. The fashion industry is highly reliant on branding.

Creativity (technological innovation and artistic expression) is nurtured and encouraged by society due to Intellectual Property, which gives creators incentive to create original works in exchange for legally enforceable protection and rights over the selling and licensing of their products. This in turn, builds fashion businesses, creates new jobs and stimulates the economy in the apparel industry. 

In a commercial context, these protections apply to the fashion industry to the fact that fashion is based on selling creatively protected goods.

As mentioned before, the fashion industry is highly reliant on branding and reputation, which is protected by Trademarks. For example, Hermes protects their logos through trademark, as well as the iconic shape, closure and hardware of their Birkin Bag. In addition, a colour can become a distinguishing point of brand reputation, such as Tiffany’s iconic turquoise colour and Christian Louboutin’s red sole, which attributes to the consumer to easily identify the product’s origin. In the case of counterfeit fashion goods, which negatively affects the original brand’s commercial and creative integrity, as well as taking away profit from the original brands, trademarks are legally used to prevent black market companies and products from hitting the market, protecting the brand’s reputation.

A major issue of Trademarking for international fashion brands are countries that have different Trademark laws. For example, Christian Louboutin’s iconic red sole is covered in many major countries, but is not covered in countries like the EU and India. Louboutin recently won a Trademark case in the European Union, as it was proven that the sole’s red colour gave “substantial value to the goods and indicates a certain position” in the Court of Justice of the European Union. In addition, the red colour is not recognised as a Trademark law in India, as a single colour cannot be covered and cannot qualify as a Trademark.

In the case of the fashion industry, the increasing speed of stock turnover (especially with the effects of fast fashion business) has dramatically impacted the protection of intellectual property. The time it takes for designs, patterns and logos etc. simply takes too long to suit the fashion industry’s fast seasons. In addition, intellectual property within fashion is more complex and infringement is harder to identify, meaning that other brands can create similar items, which are different enough to not be applicable for infringement (might I reference Zara and H&M?). For fashion brands, Intellectual Property may not even be timely enough or even worth their time and money, what’s the point of Intellectual Property in today’s fashion industry?

Ultimately, the purpose of Intellectual Property (Copyright, Trademark and Design) is not just about protection against copying, it simply identifies the creator of the item. However, it does give brands the motivation to create original works, commercially sell and licence them on the market and to legally have protection against any infringement. Is it good enough for the fashion specifically? Hm, perhaps not, but what other choice do fashion brands have?