Like all creative fields, fashion is also driven by innovation, fresh ideas, and its eventual adaptability by the common masses. However, unlike literature, music, art, and cinematographic works, designs curated by fashion pioneers are barely equipped with legal options to exploit their rights in the intellectual asset created by them. Protecting and enforcing their rights against fast fashion manufacturers in favor of their creative insight and inputs are two crucial aspects in sustaining the industry.
What is Fast Fashion?
The term fast fashion is used to denote the designs that are stalked to the shelves at the lowest prices soon after they become vogue due to being sold by high-end brands or being projected on runways. Fast fashion retailers can adapt to the constantly changing needs of this industry while offering the best knock-offs with the precision of each stitch and pocket. As a result of this, aided by newfound technological developments, a wave of disruption has been brought about by fast-fashion manufacturers affecting the creative inputs of both established and emerging fashion houses and designers.
Even though one may think it is to the benefit of the consumers since now an individual can afford the haute couture witnessed and worn by celebrities. However, it is accompanied at an enormous cost hitting the creative insight and financial interest of the creators, including the economy of the country. The parroting of goods and undermining of Intellectual Property (IP) in this sector can be attributed to two significant reasons. Firstly, the pace of this industry is rather expeditious. It is an escapade and an everchanging sector that does not stand still on two feet. Also, the rise of e-commerce has enhanced the scope of duplication and rapid sales. Therefore, traditional legal enforcement is challenging. Quite often, before a proprietor successfully obtains an Intellectual Property Right (IPR), the designs are stifled and already being sold on the streets.
Curbing the Issue of Fashion Parroting Ft. IPRs
Since the theft of IP is evident due to the evolving industry trends and disparity in legal practices over the globe, a strategic stance has to be taken to safeguard IPRs. As evident as it may be, fast fashion manufacturers have barely faced any consequences for mass duplication of goods. A majority of cases are either in favor of these manufacturers or are summed up after successful enforcement. An example of this is the case between Forever 21 and Gucci. Also, countries like the US do not safeguard the copyright in a garment but only its creative features, which may appear in the form of a picture, graphical representation, etc.
Therefore, it is the fashion industry that has to equip and defend itself from fast fashion manufacturers and not vice versa. Certain points of consideration have been taken into the picture by famous brand houses to build their reputation, some of which have been quoted below. The same stands true for styles and motifs, like the Burberry checks, the famous bridge aviators by Ray-Ban, Dr. Martens boots, etc.
IP in fashion can be safeguarded by resorting to the following strategies:
- Protect Your Name: To ensure identification of the source of goods to the rightful proprietor is rudimentary for all designers. This is what enables the generation of product and brand value. Examples of the same include the inverted Cs in Channel and medusa in Versace’s logo, both of which are iconic and easily identifiable.
- Protect the Demeanor: The protection of such sort is termed as a ‘Trade Dress.’ The appearance of the product can be protected when it has achieved a sense of recognition due to its distinctive attributes. However, the same shall not constitute a functional aspect of the object. The red sole of Christian Louboutin shoes is a well-known example of what may be identified as a trade dress.
- Protect the Invention: Some designs are a result of a novel thought, which brings out a non-obvious innovation that is useful and applicable to the said industry. They may resort to Patent Protection either in the form of designs or utility patents. This route may not always be feasible given the fact that securing a patent is a long road full of hurdles and obstacles, and the fashion industry does not stop and wait for the next best. Virgil Abloh’s Off White patent for his famous paperclip jewelry has been registered as a patent and is a well-quoted precedent of a patent in the fashion realm.
- Protect the Design Itself: The original artistic expression in the design can be registered as a copyright. It includes shapes, configurations, patterns, photographs, ornaments, and the composition of lines or colors. The same stands true, especially for custom-made and limited edition works of art. This mode is often adopted by creators in Japan, Brazil, Israel, and India.
In addition to safeguarding one’s rights through registration, the aftermath should be legally dealt with while sharing such artistic creations. The following may also serve beneficial while protecting the IP from fast fashion culture:
- Organizing and Assorting: It is imperative to be aware of one’s creative input, specifically if one seeks to safeguard a portfolio of different designs and objects. Therefore, it is crucial to organize and assort the portfolio of designs in the proffered order.
- Executing Agreements: While allocating IPRs, the designer/creator must resort to licensing agreements. Also, if one shares information with any third party, including colleagues and employees, it is critical to enter into confidentiality agreements while also maintaining a record of the same.
- Monitor and Enforce: The counterfeit industry is estimated to generate more than $400 billion annually. Also, trademark squatters are a source of unbridled nuisance. Therefore, once all the registrations and agreements are put in place, it is essential to be aware of the current market situation and competitors in the same industry to curb any malpractices.
The fashion industry is beyond just-style. It is a form of artistic expression, and hence, it should be safeguarded against all kinds of illegal trade practices hampering the interest of the creators and the industry itself.
Countries must identify the said issue and amend their laws to facilitate protection to such works. The European Union, Japan, and India already have a law accommodating the rights in a design on garments and accessories to prevent malpractices, but countries offering a traditional approach like the US may need a certain degree of alteration and amendments since they have failed to protect designs.
Also, much heave and attention should be brought-upon to ensure the prevention of unparalleled marketing. One way to ensure this is by building consumer brand awareness for which the designer shall assume responsibility, and another way is through custom recordal and enforcement for which the governmental authorities shall exercise vigilance and control. Overcoming the said challenges through the suggested approach may appear as a prolific task, but it will build space for a fashion industry that is creative and healthy.