Fashion law: Intellectual property in fashion

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Fashion law: Intellectual property in fashion

The fashion industry is constantly evolving, creating new styles and trends that are imposed worldwide. That is why it is so important to protect the Intellectual Property (IP) rights that emanate from such creations. This includes from the protection of the industrial design of each of the garments created, to the protection of the name or trademark through which such garments are identified in the market, through a series of other Intellectual Property rights that can be protected.

Intellectual Property has become a key element in the fashion business and has contributed to the growth of the business.

The monetization of a brand is achieved through the creation of valuable elements for the market, such as the prints and designs used in the different garments, through which a certain brand is recognized.

What Intellectual Property rights are applicable to the fashion industry?

  1. Industrial Design: Industrial designs are one of the most effective ways of protecting new fashion creations, since, by registering them, the holder of these rights can prevent third parties from using his designs without his consent.

The lack of protection of designs leads to their vulnerability, which means that many designers have to fight against infringement of their fashion designs, involving high costs in terms of time and resources.

  1. Trademarks: Trademarks are distinctive signs that represent certain products and/or services in the market.
  1. Trade dress: It is defined as that which gives protection to the visual appearance of a given product or package. This includes its shape, color, texture and size. It must be original and unique and achieve a commercial impression independent of the words of the trademark that accompany it, making consumers identify this image with its business origin.
  1. Copyright: Fashion designs are also protected, in some countries, as copyrights, since they are considered works of art. It is important to mention that copyrights do not seek total protection over useful articles, which causes a disjunctive, since clothing is considered useful articles, so only certain aspects of clothing design are protectable.
  1. Patents: Although patents are not the most widely used in the fashion industry, they are often very useful to protect and encourage further technological innovation, and thus create a more powerful brand, as it will certainly have more appeal to partners and investors in a highly competitive market.

Within patents, there is a subgroup called Design Patents that protects the decorative or ornamental aspect of functional devices, as, for example, could be the case of certain shoes or handbags that contain some especially decorative functional element.

  1. Trade Secret: It is less well known than trademarks, designs or patents, but is frequently used by companies around the world. In simple terms, a trade secret is information that a company does not wish to share with its competitors, such as, for example, a formula or method, or certain product characteristics; the list of suppliers and customers, the manufacturing process; or even information about a country in which the company wants to establish itself; in order to gain an economic advantage.

The importance of protecting fashion designs

The importance of protecting Intellectual Property rights is fundamental in the fashion world, as it is the only way to create a safe and healthy environment for designers to have the peace of mind that their creations will have the proper protection.

That is why it is so important for fashion designers themselves to learn about its importance and to educate and advise themselves in order to obtain the best protection of their rights.

Likewise, clothing brands have the challenge of obtaining a solid legal backing, through the registration of Intellectual Property rights, which allows them to avoid the illegitimate use of their image and to fight against counterfeiters, who do so much damage to fashion brands, both in their reputation and in the economic aspect. The reputation of a brand is the basis of its success and must therefore be protected, and although it is often extremely difficult to prevent counterfeiting, with effective legislation to protect intellectual property rights in different countries, it is possible to reduce the risks and damage and thus help the industry and the economy in general to grow.

Copyright for advertising images and fashion photography

Image rights are always necessary. When making a reproduction, use and publication of an image in any medium, you always need the author’s consent. There are several factors to take into account.

The law grants the rights of the work to its author. Therefore, he has the right of assignment, something like lending it, reproducing or copying it, the right to show it or transform it.

Other important aspects to consider about Fashion Law

Other areas of law may be involved in the development of a company, such as labor, commercial, administrative or criminal law. Precisely, crimes against Industrial and Intellectual Property also play a crucial role in fashion, due to the scandalous data of counterfeiting and piracy in recent years. These crimes affect to a greater extent well-known or renowned brands, since their misuse can cause serious damage to their reputation and image.

On the other hand, as a consequence of the evolution of the fashion industry in the online sector, advice is needed in relation to privacy, sponsorship and advertising in social networks and other media, as well as data processing and contracting conditions according to the Organic Law on Data Protection and guarantee of digital rights (LOPDgdd) and the Law on Information Society Services (LSSI).

Therefore, from Letslaw by RSM we will be happy to help you in any legal aspect about your brand or design.

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