Author: Boyana Boyadzhieva
Fashion, as a field of continuous development, penetrates into every aspect of our lives and has a significant impact on:
- culture – fashion has always been intertwined with culture, reflecting societal values, norms and trends. Fashion designers often draw inspiration from different cultures, which contributes to cultural exchange and understanding.
- the economy – the fashion industry is a huge global economic force, generating billions in revenue annually and employing millions of people worldwide,
- social change – from the women’s suffrage movement to the civil rights movement, clothing has been used as a means of self-expression and political statement,
- the environment– with growing awareness of environmental issues, designers are under pressure to adopt sustainable practices, from responsible sourcing of materials to reducing waste in production processes,
- globalisation – popular brands have extended their reach internationally, contributing to cultural exchange and influencing consumer behaviour, and
- technological innovation – fashion designers often push the boundaries of creativity and innovation by exploring new materials, techniques and technologies. Perhaps the most striking example remains the dress made of liquid cotton, which hardens after application, which was ‘sprayed’ on the body of model Bella Hadid during the fashion show of the brand ‘Coperni’.
Originality is at the heart of the fashion industry’s prosperity – a catalyst for innovation and creativity for designers who put imagination and expertise into each collection, striving to create designs that resonate and leave a lasting impression with consumers.
However, this ingenuity is particularly vulnerable. Without adequate protection, designers risk their creations being copied, counterfeited and devalued, threatening not only their livelihoods but the integrity of the industry as a whole. Therefore, paramount in this creative maelstrom is the protection of intellectual property (IP) rights – a cornerstone of the industry’s sustainability and prosperity.
In this article, we examine the multifaceted role of IP rights in the fashion world, focusing on the mechanisms through which designers protect their creativity, as well as the challenges facing the industry.
What are the challenges that the fashion industry faces?
One of the most serious challenges facing the fashion industry is counterfeiting and copying of designs and trademarks. A study by the European Union Intellectual Property Office (EUIPO) shows that counterfeit goods have a profound economic impact on the fashion sector.
Counterfeiters easily copy the designs of clothing and accessories of popular fashion brands and sell them under the name of the same fashion brand at a fraction of the price at which the original goods are sold. In doing so, they undercut the legitimate owners and reduce the value of the brand they are counterfeiting.
In connection with these illegal activities, the fashion industry loses nearly EUR 12 billion in sales and nearly 200 000 jobs every year. In addition to the economic losses and the impact on jobs, the report notes that counterfeiting fuels organised crime, undermines confidence in the rule of law and has a negative impact on the environment.
Why is intellectual property essential in the fashion industry?
From iconic logos to intricate fabric patterns, intellectual property rights serve as the foundation on which fashion brands build their reputation and differentiate themselves in the marketplace from their competitors. Intellectual property rights help their owner to prevent the production of counterfeits and copies that are placed on the market without their permission, and they also help in the fight against third parties who take unfair advantage of the owner’s reputation. In addition, intellectual property rights open up new business opportunities in the form of licensing, franchising, etc., and stimulate investment in research and development by encouraging designers to push the boundaries of the design industry.
How do fashion designers effectively protect their intellectual property?
Trademarks:
Brand names, logos, and other distinctive signs are essential elements of fashion brand identity and can be protected by registering them as trademarks. The primary function of a trademark is to distinguish one entity’s goods from those of others. Establishing and protecting a trademark is vital for brand recognition and consumer confidence. It ensures that consumers can reliably identify and associate goods with their favourite brands, thereby promoting brand loyalty and building brand reputation. Also, the owner of the registered trademark will be able to prevent others from using the same or a confusingly similar trademark in the territory in which the mark has effect.
The term of a trade mark registration in Bulgaria is ten years from the date of filing of the application. The registration may be renewed indefinitely for further periods of ten years.
Examples of popular trademarks are names such as ‘Nike’, ‘Dior’, ‘ZARA’; the logos of ‘Adidas’, ‘Gucci’ and ‘YSL’; the pattern used on the goods of ‘Burberry’ and ‘Louis Vuitton’; the shape of ‘Hermès’ bags, even the iconic red soles of ‘Christian Louboutin’.
Industrial designs:
Designers invest considerable time, effort and resources in creating unique and distinctive designs. One of the main ways to protect these designs is through the registration of industrial designs. These legal mechanisms grant designers exclusive rights to their creations, preventing others from reproducing, selling or profiting from their work without permission. It is important to note that industrial designs are valid for a certain period of time – in Bulgaria, the validity period of an industrial design registration is ten years from the date of filing. The registration can be renewed three times for subsequent periods of five years.
Examples of popular industrial designs are the design of Nike sneakers and Ray-Ban glasses.
Copyright:
Copyright law extends to original works of authorship, including artistic works such as fabric prints, patterns and graphic designs. Fashion designers often rely on copyright protection to protect their creative achievements. From runway collections to textile designs, copyright grants designers exclusive rights to reproduce, distribute and display their works. By preventing unauthorised copying or reproduction, the legislation stimulates innovation and creativity in the fashion industry.
Patents:
Patents in the fashion industry can cover various aspects of the design, technology and functionality of the product itself. While patents are more often associated with inventions in areas such as technology, they also play an important role in protecting innovations that provide a significant competitive advantage in the fashion business.
Examples of patentable innovations in the fashion industry include:
- New compositions in the composition of fabrics or fabrics that improve performance, comfort or sustainability (e.g. fabrics and fabrics that do not crease, that are softer, thinner, better insulated, waterproof, etc.);
- Smart textiles providing innovative benefits such as thermoregulation, heated clothing, electronic moisture management, fabrics with integrated lighting or video recording, garments that monitor vital signs, etc.
Such innovative products provide an opportunity to attract investors, business partners and market expansion due to gaining popularity among consumers.
An example of a popular patent in the fashion industry is a patented fabric called ‘FastSkin’ by the brand ‘Speedo’, which draws inspiration from shark skin. This fabric manages to increase the glide in water by reducing resistance, enabling swimmers to win valuable seconds in competitions.
A patent grants an exclusive right to an invention, product or process that provides a new way of or offers a new technical solution to a problem. For an invention to be patentable, it must be new, have an inventive step and be industrially applicable. The term of an issued patent is 20 years from the date of filing.
Trade Secret:
A trade secret is a type of confidential information that is kept secret and provides economic value or competitive advantage to its holder because of its secret status. It is an extremely valuable asset in the fashion industry.
Any information can be protected as a trade secret if it simultaneously meets the following requirements:
- it is a secret in such a way that it is not generally known to, or readily accessible to, persons in the circles that ordinarily use that type of information, either in its entirety or in its precise configuration and aggregate;
- it has commercial value because of its secret nature;
- measures have been taken to keep it secret by the person having control of the information.
There is no exhaustive list of what constitutes a trade secret. For example, trade secrets in the fashion industry may include certain methods for creating unique designs, techniques for hand-dyeing fabrics, creating unusual embellishments, developing distinctive silhouettes, patterns, prints, information about reliable suppliers, sources of high-quality materials, exclusive manufacturing techniques, strategies for building brand identity, detailed information about customer preferences, and more.
As with the other IP protection methods listed above, effective protection and management of trade secrets are essential to sustaining innovation, creativity and profitability in the industry. Ways to protect trade secrets include non-disclosure agreements (NDAs), limiting access to confidential information, implementing policies and procedures to ensure that employees understand their obligations to maintain the confidentiality of trade secrets, establishing physical and digital security measures, and more.
Conclusion:
Intellectual property plays a critical role in driving innovation in the fashion industry by allowing designers to be able to protect their rights and be rewarded for their work. Protecting intellectual property rights is not only a legal obligation but also a moral imperative. It is a testament to the ingenuity, dedication, and passion of the countless individuals who breathe life into the fabric of fashion, shaping trends, inspiring generations, and leaving an indelible mark on the world.
This material prepared by Boyana Boyadzhieva aims to provide more information about intellectual property in the fashion world. It does not constitute a legal opinion and cannot be interpreted as individual consultation on any concrete facts or circumstances. The advice of an intellectual property specialist should be obtained for specific questions and situations. For more information on the above-mentioned issues and individual consultations, please contact KrasimiraKadieva law office at 00359 882 308 670 or make an inquiry using the contact form on this website. Boyana Boyadjieva is a legal associate at the law firm. She holds a Master’s degree in Intellectual Property Law from the Queen Mary University of London. Prior to joining the team of the law firm, Boyana interned at the European Union Intellectual Property Office (EUIPO). Her professional interests are related to intellectual property, data protection, e-commerce, and contract law, and regularly attends conferences, practical courses, seminars, and webinars in these areas of law. She is fluent in English.