The fashion industry is an emerging sector in the world with a market capitalization of more than 500 Billion Dollars worldwide. For this sector, the key factor is the innovation and the new idea that keep on coming every day. It is these innovations that keep this sector vigilant about their rights, especially their IP rights. The creation and marketing of the products take its recourse through IP protection. But often the protection seems to be in vain due to less effective checks and balances. The smaller and local sector is more neglected in protecting their intellectual assets; thereby we see infringed and pirated materials in the market, confusing the consumers.
The IP law faces many challenges in this sector with regards to the protection offered and its effective enforcement. IP law protects materials through copyright, trademark, and even to some extent patents, if the applicant can prove that the invention is novel and non-obvious and constitutes industrial applicability. While copyright does not protect the physical functionality of the materials per se, but it can protect the print pattern design if it is novel. Trademark protects the logo of the company but not the whole material. Due to such influx of IP in the fashion industry, it becomes imperative to understand the challenges faced by IP in this sector.
The primary challenge that is faced is the challenge of protection. The creation of fashion needs protection. Every fashion outlet distinguishes it from other goods and services through the mark which is also subject to protection. This protection must not only mean protecting the designer and the fashion house but also the subject matter. Some of the issues like to what extent the models may be regarded as a performer and may be vested with the performer's right remains debatable. The recent case of Star Athletica LLC in the US which centres itself on the copyrightability of design on the cheerleader uniform shows the importance and depth of IP in the fashion industry.
Another part that comes up as a challenge is enforcement. The incoming of fast fashion describes the clothing designs that move quickly from the catwalk to the stores to meet new trends. In such a scenario, effective enforcement has become problematic. The owner of trademark has a clear idea of how far the protection of the sign can go even in a different jurisdiction. The challenge of creativity cannot be denied when it comes under the purview of enforcement. An IP regime effectively protects the holder of existing rights and also the cultural significance of certain communities. In the fashion industry, the trends, discoveries, and re-discoveries are possible due to its inherent nature of fast-growing. It's also due to the cumulative efforts of designs, fashion houses, celebrities etc. This enforcement has to be construed in an effective manner which in any case must not limit the creativity in the industry which forms the backbone of the same.
Prevalent Position in the United States and the European Union
Even if copyright is mostly talked about as the main protection of design, in the US, the trademark is the most widely used means by which fashion brands protect them in the United States. The above-mentioned case of Star Athletica, LLC v Varsity Brands, Inc has impacted the fashion industry in the United States. The case, which went to the US Supreme Court, decided on the copyrightability of designs and the concept of "separability," which is a pre-requisite for a garment or other useful article to be protected under US copyright law. As copyright law does not seek to protect or create a monopoly over useful articles, and as garments, dresses, shoes, bags, and so forth are considered useful items, they don't qualify for copyright protection as a whole. The Court gave the separability test where it said that only those design features that can be separated from a garment or other utilitarian or useful item can be qualified for copyright protection in the United States. The whole issue has been a major source of frustration for designers in the United States for some time because it means that only certain aspects of their garments, and not the garment as a whole, are protectable. ( https://www.wipo.int/wipo_magazine/en/2018/04/article_0006.html).
The United States has seen a changing regime of using IP for protection for fashion businesses where the business holder is shifting for a design patent protection, even lengthy process but effective. Trade dress is also gaining popularity for protecting the appearance and packaging of the product. One of the main differences between the European Union and the United States on IP regulation is the fact that the EU provides with the garments and accessories as a whole different from that of US as mentioned above concerning the separability test.
The fashion industry is more than just attire and design. It's the ability to monetize the brand and clothing with the IPR. With an ever-growing market, touching upon a trillion-dollar market cap in the upcoming decade, effective enforcement is needed to sensitize the people in the fashion industry.
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