Fashion's High Stakes: The Role of Intellectual Property

Few consumers can afford the ready-to-wear looks sent down the runway each season or worn by celebrities on any of the various major red carpets, and as grateful as many of these consumers may be when those designs eventually filter down to high-street stores, they generally only arrive there via the kind of copying and subtle knock-offs that would be considered unacceptable in many other creative industries. So, why is copying not just institutionalized, but also considered acceptable in the fashion sector?

Counterfeit chic

Many cite the fast-moving nature of the fashion retail sector as a reason for not dedicating more resources or attention to the protection of fashion, clothing and accessory designs. In a fast-paced consumer sector like fashion, popular styles sell out almost as quickly as they hit the shop floor and retailers need to ensure a rapid turnover of new, and often low-priced, stock if they are to keep their shoppers' attention.

In this environment, the time taken to establish legal protections and bring legal infringement actions can appear overly long and the cost too prohibitive; particularly as, in many cases, the design in question will no longer be in use by the time the action is ready to be pursued.

This has added to the sense of listlessness that has existed traditionally around stomping down on much of the piracy we see within the sector. However, this is changing. The growing availability of counterfeit goods, the advances in digital technology that have improved the ease and speed in which goods can be copied and produced, and the relocation of manufacturing sites to the Far East have all focused fashion brands' awareness on the importance of intellectual property (“IP”).

Recurring infringement cases against high-street chains from everyone from high fashion brands to recent fashion graduates, represent part of this shift change. The sector is increasingly recognizing the value of its IP and understanding that unauthorized copying not only constitutes infringement of those IP rights, but also has a major impact on their bottom line and reputation. The question is: what can they do about it?

Creating a protection strategy

The majority of infringement actions brought at in the EU at present are done so on the basis of a designer's copyright or unregistered design rights (Note: in the U.S., litigation is likely more centered on trademarks in the fashion industry given the limited copyright protection for garments and accessories as whole). While these rights are valuable, they are not always the most effective routes for action; particularly as they can be difficult to prove and, therefore, enforce. In comparison, a registered design right is a more certain and arguable right, giving its owner a clear legal redress in the case of infringement. Given that the cost of a design registration is relatively low, it's worth protecting key innovations regularly, even if they have a limited lifespan.

It is important to remember too that not all fashion designs will have such a short existence. After all, the little black dress, the mini skirt, the 'skort' (skirt-short) were all novel creations when they first hit the catwalk.

Similarly, many of the best-known fashion brands have built their reputations on iconic styles and motifs that have retained consumer interest as the brand has grown and evolved: Louboutin's red sole, the Burberry check, Levi 501s, Ray-Ban's Aviator sunglasses, Doc Martin boots, Havaianas and, more recently, the distinctive sole of the Ugg boot.

Any new styles, like these, that are created as part of a company identity will obviously have a longer lifespan and should be protected and enforced proactively – whether it be via trademark, copyright, or patent law, or still, a combination thereof; although, it can often be difficult within the sector to identify a style that will endure beyond the current trends.

In the current economic environment, protection from unauthorized copying is becoming incredibly important in all sectors. Launching a new fashion design takes time, resources and creativity, so why would you let another company have a free ride on all that hard work?

IP checklist

Are you aware of the importance of IP to your business? Have you protected your IP? Do you know that you can use your IP rights to prevent others from stealing your ideas? The fashion industry is a fast moving industry with frequent changes and considerable opportunities for IP theft. 

ALASTAIR RAWLENCE is a Registered UK and European Trademark Attorney, a qualified Barrister, and graduated with a Law Degree. He has previously held senior positions in the advertising and international marketing sectors.