Fashion and Apparel Online Brand Protection

Fashion is about design. The fashion business is also a lot about creating

intellectual property assets, from unique branding elements to colours,

prints, and patterns. Intellectual property rights foster creativity and

innovation in the world of fashion, which seeks the protection of all aspects

of its creations.

Fashion goods such as apparel, shoes, and bags are useful items, and this

characteristic affects their intellectual property rights. Yet, the fashion

industry finds creative ways to protect their assets and works to stop others

from offering counterfeits, replicas, imitations, and knock-offs.

Here is a look at protecting the intellectual property of fashion brands.

“You either know fashion or you don’t,” said Anna Wintour. Let’s get to

know fashion law.

Fashion Law

A design refers to an appearance such as lines, colors, texture, materials,

and other elements. A creative fashion idea, such as a specific striped

pattern, is intangible. Protection is granted only to an idea that is tangible in

a specific physical item.

So how can a fashion creative idea be protected? Through prohibiting the

copy of physical items that portray the intellectual asset. In our example,

products that present the specific striped pattern.

Jurisdictions across the world have different protections for fashion.

EU Community Design Rights

In the European Union, the protection of fashion designers is substantial.

Intellectual property includes registered and unregistered community

design rights that protect garments and accessories as a whole or just a

part of the product, in addition to national systems of protection in each

Member State.

Article 3 of the Community Designs Regulation defines “design” as “the

appearance of the whole or a part of a product resulting from the features

of, in particular, the lines, contours, colours, shape, texture and/or materials

of the product itself and/or its ornamentation”. The Regulation protects

designs that are new (there is no identical design that is available to the

public) and have individual character (in the eyes of an informed fashion

user).

Most fashion designs do not have a unique form, but since their novelty is

assessed by one-to-one comparisons, just one unique feature, such as a

specific striped pattern or embroidery, may create a unique impression and

grant the IP protection for the specific feature or the item as a whole.

A registered Community Design gives its holder the exclusive right to use it

and to prevent others from using it without consent. Yet, fashion brands

register mainly designs that are not for clothing but for accessories, such as

watches and sunglasses, which have different protections.

Unregistered community design is another solution for European designers

and fashion brands. To gain protection against unauthorized copying, you

only need to make the design available to the public. The duration of this

intellectual property protection is three years.

Copyright Law

Copyright law is the primary protection for US designs, although fashion

brands often use trademarks for IP protection.

Copyright protection is created together with the work, although there are

good reasons to register them (see more in our blog article on: Why it is

Important to Register Copyrights). The owner has the exclusive right to

reproduce, distribute, license, and prepare derivative works based on the

copyrighted work.

Copyright protection does not usually extend to the design of useful goods,

such as apparel, glasses, and bags. As a result, fashion items do not

qualify for copyright protection as a whole.

Separation of the creative elements from the “useful article” allows for the

protection of specific elements of fashion designs, if they meet the bar of

creativity and originality and are fixed in a tangible medium. However, it

does not protect the fashion item as a whole.

The issue was discussed before the Supreme Court in Star Athletica, LLC

v. Varsity Brands, Inc. The Court examined whether a feature of a useful

article such as cheerleading uniforms can gain copyright protection.

The majority of the Court held that, “a feature incorporated into the design

of a useful article is eligible for copyright protection only if the feature (1)

can be perceived as a two- or three-dimensional work of art separate from

the useful article and (2) would qualify as a protectable pictorial, graphic, or

sculptural work – either on its own or fixed in some other tangible medium

of expression – if it were imagined separately from the useful article into

which it is incorporated.”

Trademark Law

Trademarks play an important role in the world of fashion. A Trademark

is usually a word, phrase, symbol, design, or a combination of these that

identifies and distinguishes the source of the goods. Logos, brand names,

and even colours allow consumers to recognize the makers of fashion

items.

Today, there is a demand for logos to appear on garments and bags where

they are visible. Brand-conscious customers, such as millennials and Gen-

Z, like to wear their logos where others can see them in person or on social

media. A logo on a product is also a way for brands to protect aspects of

their fashion creations.

The protection is not limited to words and logos but also covers other

features. For example, luxury fashion house Burberry has trademarks for

both its logo and the iconic Burberry Check pattern of tan, black, and

red. And Christian Louboutin’s red sole trademark protects its lacquered

red sole design (when contrasting with the upper part of the shoe).

Trademark protection allows brands to enforce their rights in the territories

in which they are registered or used. The first-to-use system in the US and

other jurisdictions is different from the first-to-file system, which governs

trademarks in some territories. China, for example, is using a first-to-file

trademark system. In this system, intellectual property rights go to the first

party to register the trademark, a process that requires no proof of use.

Read more in this blog article: How to Register a Trademark in China.

Trademarks do not have a fixed duration and as long as the owner

continues to use the mark, and it continues to identify its goods rather than

becoming generic, the rights can last indefinitely.

Trade Dress

This type of trademark protection protects the appearance (“dressing”) and

packaging of products, as well as the design of a product. It applies to

fashion because it protects the “‘total image and overall appearance’ of a

product, or the totality of the elements, and ‘may include features such as

size, shape, color or color combinations, texture, graphics’”, as quoted

by USPTO.

Trade dress cannot have a “functional” purpose. It has to identify a source,

as does a regular trademark (such as a logo), and create a likelihood of

confusion for consumers. The design also has to be “distinctive” rather than

generic, either because it is “inherently distinctive” or it has acquired a

secondary meaning.

To establish a secondary meaning fashion brands usually present facts that

include consumer surveys showing that consumers associate the trade

dress with a specific source, unsolicited media coverage, proof regarding

the length and exclusivity of use, and more.

Trade dress protects fashion if it is registered as a trademark or it may be

protected under common-law rights through use.

Patent Protection

A registered patent can protect a specific design, and allow the patent

holder to prevent other from imitating it. Clothing and accessories can

sometimes be patented as a whole with a design patent, based on new,

original, decorative, and non-functional features.

A design patent is more difficult to obtain than copyright protection. Due to

the time it takes to register and the costs associated with it, it is mostly

used by bigger luxury brands that expect to sell in big numbers over time

and so seek to protect their assets. Patent protection also allows them to

license other parties or sell their right.

Fashion violations

Fashion IP rights are violated in various ways on a growing number of

platforms, and most of all, social media platforms. The endless selection of

designs online makes it hard to detect counterfeits. Most fashion brands

use logos and labels that give them protection under trademark law and

make it easier for them to detect imitations and for consumers to identify

the brand.

Counterfeiters, on their part, try their best to copy the fashion

design and the logo or any other identifying mark. With superfakes on the

rise, it is more challenging than ever to tell originals from counterfeits.

Wiser Fashion

The way to protect fashion starts with intellectual property rights: Designs,

Trademarks, Copyrights and Patents.

Intellectual property rights are significant in the highly competitive fashion

industry, but only if violations are monitored and enforced. The attempt to

manually tackle counterfeit fashion and other online infringements is

daunting, time-consuming and costly.

It’s an online world and the way to face the challenges it presents is by

applying advanced technology.

Wiser Market offers fashion designers and brands an automatic solution for

online brand protection with unrivalled results, combining advanced

technology with unique eCommerce know-how, to help you overcome the

challenge of counterfeits damaging your brand.

We take the pain away, and allow you to focus on growing your brand.