Challenges in IP Protection in the Fashion Industry

Innovation, the conceptualization of new ideas and trends are the pillars on which the fashion industry thrives. Needless to say, all these are the brainchild of human intellect. It is a field that is dynamic and reinventing previous styles to create new designs, many of which become works of art and fashion classics. So it becomes obligatory to protect Intellectual property (IP) rights. IP rights must protect creative expression in the ever-changing fashion business. Each industrial design asset’s worth and the brand that markets that asset is the intellectual capital that helps a company’s position in the fashion sector. The fashion industry is one of the most rapidly evolving industries, face it or not, and it is here to stay!

It is highly observed that there is the most significant difficulty in protecting IP, such as many designs seasonally in the fashion business.

The massive industry is not immune to widespread practices of ‘imitating‘ and ‘counterfeiting,’ phrases with far more legal and moral repercussions than the average person can comprehend. As a result, most legal systems have intellectual property laws in place to prevent this evil.

Intellectual property law aids in the protection of human intellect’s creative and imaginative works.

Copyright, trademarks, and patents are the many facets of IP in the fashion sector and any other industry. However, there lie many challenges in the implementation of the same.

Copyright is the legal protection of creative literary or artistic work, and it can only incorporate the creative aspect of fashion design, not the physical functioning. While the clothes themselves cannot be copied, the design of the products, such as the print pattern, can be.

The Intellectual property trademark allows customers to identify the source of goods.

The interlocking GG of Gucci and the apple logo raises people’s eyes for two reasons: the rapid association of the goods with their source (well-known luxury brands) and the extravagant price that a person in possession of such things may have spent. As a result, trademarks provide an effective layer of protection for designers who use trademark-protected symbols and emblems in their work.

Trade dress is a protection given to a product when it becomes distinctive or takes on a secondary meaning. The robin blue colour of Tiffany’s packaging or Christian Louboutin’s notorious red sole heels help shoppers to relate it to the source directly. In short, it is their brand identity among the masses.

Industrial Design is any three-dimensional or two-dimensional shape, such as a wallet or a hat, or two-dimensional, such as a textile print. It has specific characteristics that give it a new physiognomy. It distinguishes it from other similar articles by its geometrical shape, aesthetic aspects, or ornamentation and serves as a pattern to manufacture other items.

What about patents?

For being patentable, creation must have industrial applicability, unique, and be innovative. Patents are not available for artistic creations, and patents usually do not occur instantly when discussing the fashion sector. Furthermore, because fashion trends frequently change, obtaining a patent is not worthwhile, and patents can be prohibitively expensive until a design can be duplicated year after year. Technical advancements, on the other hand, might put a fashion company ahead of the competition.

Fashion patents give producers exclusive legal rights to their creations, whether it’s a product, design, or procedure in the fashion industry. As a result, a company/creator can safeguard its intellectual property rights by getting a patent on a novel creation.

Despite the diversity of intellectual property available to fashion designers, it is still insufficient. The claim stands due to a lack of a sufficient mechanism to safeguard designers and their creativity and a failure to combat the widespread organized crime of counterfeiting, which includes rampant copying of designs and selling them for a low-price knock-on effect on sustainability.

To cite an example: There was a recent case on the fashion giant Shein. Shein, which was founded in China in 2008, has overtaken Amazon as the most popular shopping app in the United States, while Canada ranks fourth among countries that visit Shein’s website the most. Shein attracts fast fashion customers with many alternatives and affordable prices. They are also never short of merchandise.  Shein launches between 500 and 2,000 new products to their website daily. It is sad but perhaps unsurprising that goods supposedly plagiarized and copied from more minor, independent creatives are found among the steady influx of new styles.

The latest claim of Shein stealing designs comes from Mariama Diallo, the founder of the luxury women’s clothing business ‘Sincerely Ria.’

On June 11, Diallo wrote tweets criticizing the fast-fashion label for plagiarising her designs and look. “I’m sick of big brands ripping off black designers,” she says, “she wrote in a tweet that included a photo of her brand’s outfit beside Shein‘s.” They couldn’t change a single thing, and it’s now one of their most popular products.” Shein showed the dress on their website this month, while she started creating it in early 2020 and launched it in November.

Similarly, the New Balance brand was involved in a legal struggle in China with three shoe manufacturers who had used the identical letter “N” from New Balance, the trademark’s trademark, on their sporting products in violation of their rights. The Chinese producers were fined roughly 1.5 million dollars, which was a large sum given that the penalty was handed down by a Chinese court, demonstrating China’s increased commitment to improving intellectual property protection in the country.

As we can see, intellectual property rights are entirely applicable to the fashion business, and they must be protected as soon as possible.

It is the only way to provide a safe and healthy atmosphere for designers to be confident that their inventions will be appropriately protected.

Although it is frequently challenging to prevent imitation, with good legislation to protect intellectual property rights in different nations, risks and damages can be reduced and thus help the growth of the sector and the economy in general.

Disclaimer: The present article intends to provide general guidance on the subject, and you can also consult us in your specific case.