In practice, fashion law involves the application of principles from a number of legal disciplines - in particular, protection of IP, including anti counterfeiting and licensing; commercial operations, including the legal structure of a fashion business, commercial agreements, relevant employment law, marketing and advertising, and retail leasing; and international issues.
At the heart of both fashion law and entertainment law is IP law. However, fashion-related IP calls into play a number of specific principles not encountered in the entertainment context. While copyright issues are prevalent in the entertainment context, trademark issues are characteristics of the fashion industry.
IP is fundamental to the strategies of most large fashion companies. Fashion companies are able to charge a premium for their products to the extent that they have created brand value. Thus, an ordinary T-shirt sold as a commodity (i.e., unbranded) would not fetch more than 10$ in today's marketplace, regardless of its quality. However, a T-shirt by Valentino may sell for $750. Brand value - another way of saying IP - is extremely expensive and difficult to acquire. Once fashion companies have brand value, they wish to keep and control it, and that is the job of their legal counsel. Most general counsels at major fashion companies began their legal careers as IP specialists.
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| Source: Valentino web page |
Many fashion designers and executives are uncertain about the extent of legal protection available for fashion and apparel. There is a tremendous need for better information in the industry, especially given the prevalence of knocking off a standard design practise. Let us simply note that the fashion lawyer will be familiar with the range of IP protection available for fashion products, including specifically:
LACK OF PROTECTION FOR FASHION DESIGNS
It is sometimes surprising to newcomers to discover that fashion designs are not protected under U.S. law, although they are in Europe. Repeated attempts to pass "design piracy legislation" in Congress to bring U.S. law in accord with European practice have failed. Oponents of such legislation argue that fashion is fundamentally an imitative, collaborative industry in which IP protection would be counterproductive.
TRADEMARK
Given the lack of protection for fashion design, fashion companies rely heavily on trademark and trade dress protection. A trademark is any name, logo, image, or symbol that designates the source of a product; trade dress refers to the characteristic presentation or packaging of a product. Famous trademarks in fashion include the Nike "swoosh", the Lacoste alligator, or the prominent "Juicy" logo. The fashion marketplace is filled with such prominent trademarks in part because the trademark is one aspect of IP that fashion companies can control most easily.
COPYRIGHT
Print and fabric designs may be protected by copyright. Many young designers are not aware that, if called upon to knock off a garment, they may not knock off the fabric design. Jewelry and accessories designs may also be protected. Photographs and drawings used in fashion advertising ale also copyrighted.
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| Cate Blanchett by Alexi Lubomirski for Harper's Bazaar UK April 2012 |
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| Alexi Lubomirski in Miami |
PATENTS
There are two kinds of patents in the United States:
- utility patents: these patents are for scientific or technical inventions. A new fabric, e.g. may be patented (Gore-Tex was patented). These patents may remain in force for up to twenty years.
- design patents: an ornamental design may be patented. This would seem to be the answer to the lack of protection available for fashion designs, but in practice the fashion industry moves too quickly for design patents to be of much use (at a minimum, such patents take ten months to one year to obtain). Shoe companies, with stable and long-lasting styles, do make use of design patents.
ANTICOUNTERFEITING
Counterfeiting has become a multibillion dollar global scourge, infecting industries as diverse was fashion, pharmaceuticals, and avionics. The international counterfeiting industry provides funding for international criminal networks. Virtually every prestigious fashion company today is afflicted with some level of counterfeiting, which is rampant at the international level. Some popular but small-producing brands have found that counterfeiters are producing such large volumes that consumers end up purchasing more counterfeit than real goods.
Source:
"Fashion Law. A Guide for Designers, Fashion Executives, and Attorneys"
