Introduction

Nowadays, intellectual property in fashion is getting bold!

From Large scale businesses to individual Instagram sellers, everyone wants to protect their unique selling idea, which sets them apart from other businesses. This especially holds in today’s era, where sharing music, pictures, and text has become easy and common.

This is where intellectual property laws come in, as they are a means to protect these ideas and therefore lead to creating an environment in which businesses easily find ways to blossom, and intellectual property in fashion is no exception!

However, recent history shows some of the biggest business names caught up in intellectual property rights cases. These cases have made the world headlines numerous times and are a guideline for other businesses to know what intellectual property rights are. Here are some famous high-profile cases where companies and individuals have filed a lawsuit to protect their intellectual rights.

What is the role of IP in the Fashion Business?

• IP helps brands create awareness of their products to the general public as few products can be seen in the store. For example, using a well-protected product brand on a runway displays the designer’s creative talent, attracting more attention and creating awareness of the products.
• In addition, having a recognized brand attracts more sales, particularly where a brand name is prominently displayed in perfumes, cosmetic products and clothes because most customers are attracted to brands due to their loyalty. 
• Through valid IP rights, the public can be attracted to place offers such as partnerships through agreements such as licenses and franchises. So much of the fashion industry thrives on such strategic partnerships as IP is the core traded asset in the fashion industry. 

What are the relevant IP rights that are applicable to the fashion business?

Fashion designers have used IP in many forms to protect their designs, making IP rights pivotal in the fashion industry. Some of the IP rights that are utilized in the fashion industry are; –

Trademark: A trademark is a sign or symbol capable of distinguishing the goods or services of one enterprise from the other. In the fashion industry, most designers use their name as their brand names, such as Calvin Klein and Donna Karan, where their name becomes their brand and is protected as a trademark. Equally, the tick mark of Nike and the jaguar of Puma are all brands protected as trademarks. Protecting brands by registering a trademark distinguishes the brand and puts potential imitators away, creating a huge impact on the fashion industry.

Patent (Utility and Design Patent): Every innovative aspect can be patented in the fashion industry. The products can be functional or ornamental, protected by a Utility patent and a Design Patent, respectively. Many products in the fashion industry are protected by Design patents, for example, handbags, product packaging and footwear. 

Copyrights and Design: Generally, copyright is used to protect literacy and artistic works, however in the fashion industry, it is used to protect fabric designs which are composed of the aesthetic and design part of any design, including the shapes, configuration, patterns, ornaments, lines and colours as well as all creatives that are separate from the functional elements.

Intellectual Property in Fashion: Case no. 1: Puma v. Forever 21

With the case mentioned above in mind, the lawsuit that Puma filed against Forever 21 in early April is significant. On the heels of reports that Forever 21 offers lookalike versions of footwear from Rihanna’s Fenty line for Puma, the German sportswear giant slapped the copycat retailer with a design patent, trade dress, and copyright infringement lawsuit.

According to Puma’s suit, which was filed in the US District Court for the Central District of California, the Los Angeles-based fast fashion brand has copied three of the most prominent footwear designs from Rihanna’s collection for Puma in attempts to “trade on the substantial goodwill of Puma, Rihanna, and the Fenty shoes.”

Puma set forth design patents, trade dresses, and copyright infringement claims. In connection with the latter, Puma’s counsel applies the test defined in the Star Athletica v. Varsity Brands decision, citing:

“The Fenty Copyrights (1) can be perceived as two- or three-dimensional works of art separate from the Fenty Shoes and (2) would qualify as protectable pictorial, graphic, or sculptural works—either on their own or fixed in some other tangible medium of expression.” 

In particular, Puma cites the following as the copyright-protected elements of its footwear:

• The “ridged vertical tooling and grainy texture encompassing the thick rubber outer sole” for the Creeper.
• The “wide plush fur strap extending to the sandal base” for the Fur Slide.
• The “casually knotted fabric bow with pointed endings atop a lined side strap that extends to the base of the sandal” for the Bow Slide.

This is noteworthy as it is one of the first – if not the first – cases to put the Supreme Court’s new separability test to use. It will be interesting – and telling – to see how the US District Court for the Central District of California, a court that sees a fair amount of fashion cases, applies it (assuming the case is not dismissed (as Forever 21 recently moved for) and/or the parties do not settle before trial, that is).

Intellectual Property in Fashion: Case no. 2: Louis Vuitton Malletier v. Haute Diggity Dog

Another major news headline was seen when fashion house Louis Vuitton Decided to file a lawsuit against a pet product company, Haute Diggity Dog, based in Nevada. This case wouldn’t have been such a head-turner had Louis Vuitton not lost their case. It happened so according to the ideology that Haute Diggity Dog introduced a line of “parody” products named “Chewy Vuitton”.

The lawsuit accused the company of copyright infringement and also named fashion brands like “Chanel” and “Tiffany and Co”, which, according to Louis Vuitton, were guilty of the latter crime.

However, surprisingly enough, the US court of appeals gave the verdict that Haute Diggity Dog’s product line was a successful parody. So they had not infringed the Copyrights or Trademarks of Louis Vuitton. The court believed this product line differed from Louis Vuitton’s products.

Intellectual Property in Fashion: Case no. 3: Adidas America Inc. v. Payless Shoesource Inc.

The famous three stripes have been well-defended by Adidas as a registered trademark. In 1994, Adidas sued Payless over these same stripes. Adidas has been using the three stripes designs since 1952.

Payless, confusingly enough, started to sell nearly identical athletic shoes but with 2 and 4 parallel stripes. At first, the two companies settled that year, but then again, in 2001, Payless started to sell shoes which was the cause of their scuffle. Therefore, now fearing their customers might be tricked into buying the same shoes from their competitors, Adidas decided to demand a jury trial.

This trial lasted seven years, during which 268 pairs of payless shoes were examined. Ultimately, Adidas came out victorious and was awarded $305 million, roughly $100 million for each strip. Addidas also sued other brands over these stripes but finally lost the IPR battle after a European Union for this IPR which found that it wasn’t distinctive.

Challenges in IP Protection in the Fashion Industry

The IP law faces many challenges in the fashion industry regarding the level of protection offered and enforcement aspect; this is because the fashion industry thrives on the concept of new ideas and trends which revolves around the human mind and are best capitalized through IP protection. There is still insufficiency in IP rights available in the fashion industry hence the lack of a sufficient mechanism to safeguard designers and their creativity leading to widespread crimes of counterfeiting such as imitation of designs and selling them at very low prices as a consequence. It is worth noting these most significant difficulties in protecting IP in the fashion industry, and some of their examples include; –

• Copyright in the fashion industry is designed to protect the creative aspect of fashion design only and not the functioning physical aspect; this leaves the design of the products, such as the print pattern, vulnerable to imitation. This issue of copyrightability of design was widely explored in the US case of Varsity Brands, Inc. v. Star Athletica, LLC, which involved a dispute between two clothing manufacturers, Star Athletica, Llc. and Varsity Brands Inc. Varsity Brands sold cheerleading uniforms with varying combinations of chevrons, stripes, and colour-blocking and obtained copyrights for several of its uniform designs. Star Athletica on the other hand began creating similar uniforms with stripes, zigzag and chevron insignia at a lower price and was consequently sued by Varsity Brands for copyright infringement. Star Athletica, in its defence, stated that the clothing designs were uncopyrightable because their aesthetic designs were tied closely to their utilitarian purpose as uniforms. The major issue that was not conclusively addressed was the issue of whether Varsity’s designs were original enough to be copyrightable. 
•  Another challenge is due to the ever-changing trends in the fashion industry which may make it difficult for patent applications to keep up with and the rapid technological advancements that might position a fashion company ahead of the competition. On the other hand, obtaining patents can be expensive, and its long application process can expose the design to duplication over the years.

Conclusion

Intellectual property is at the core of the fashion industry. This industry is required to be protected tactfully for a positive and sustainable existence, but while it’s just recently that the industry has boosted its growth, the laws have yet to take shape.

Consequently, finding a specific answer could be challenging in the fashion industry. Therefore, speaking with an experienced fashion law or intellectual property expert is always advisable.