Fashion brands invest significant time, money, and effort into creating unique designs, logos, and other intellectual property (IP) that sets them apart from their competitors. While today's digital technologies aid in these endeavors, they also make it increasingly easy for counterfeiters and other bad actors to steal and replicate this IP online. To protect their hard-earned IP, fashion brands must take aggressive steps to safeguard their assets and enforce their rights. An attorney experienced in fashion, trademarks, and copyright can help.
Previously, utility patents, copyright, trademarks, and design patents have been used to protect their brand. In the realm of fashion technologies, patent applications remain a potent form of defense. As more brands continue to tap into Web3 opportunities and blur the physical and digital domains into "phygital" platforms and position themselves in the market, patent filings in this space are growing. Digital fashion lawyers can help clients evaluate whether their technologies and products are patent-worthy and whether filing and enforcing them would provide effective protection. An attorney experienced in patents and other IP can also conduct searches to prevent his or her clients from inadvertently infringing on another party's trademarks, copyright, utility patent, or design patent.
A full understanding of these traditional forms of IP protection is necessary and can be applied to some aspects of these innovations, but it may not be enough. Fashion houses and designers need the additional protection and assurance that come with engaging a Web3-specialized attorney.
One of the key challenges in protecting IP in the Web3 space is that the technology is still relatively new and rapidly evolving. This means that the laws and regulations surrounding IP rights in this area are not yet fully developed, making it difficult for non-specializing attorneys to ensure complete safeguarding of their clients' IP. Because the decentralized nature of many Web3 platforms makes it harder to identify and take action against infringers, fashion industry stakeholders are well-advised to seek legal advice from someone familiar with digital media, extended reality, and blockchain applications.
This can help identify potential vulnerabilities in a fashion company's online presence, workflow, and documentation so they can take steps to mitigate them. Additionally, attorneys can work with clients to develop a comprehensive IP strategy that takes into account the unique characteristics of the Web3 space, such as the use of smart contracts and non-fungible tokens (NFTs).
Fashion clients may wish to engage an attorney who will not only assist in registering trademarks, copyrights, and utility and design patents for their Web3 innovations, including logos, designs, and branding but also advise them on how to structure and use digital tools to track and monitor how their brand-related content is used by third parties. For example, image-recognition software can notify fashion brands of potential copyright infringement on social media platforms. Similarly, blockchain-based tracking solutions can help track the authenticity and origin of the items on display and for sale. A fashion and IP lawyer will know how to respond to suspected infringements. Options include sending cease-and-desist letters, filing lawsuits, demanding damages, and working with law enforcement to take down infringing websites. It's important to note that legal action can be time-consuming and costly. A knowledgeable attorney can advise whether this course offers the best option.
Fashion brands may prefer to employ online tools to take down infringing content. For example, they can file takedown notices under the Digital Millennium Copyright Act (DMCA) to have infringing content removed from websites, and they can use services like BrandShield to monitor and take down counterfeit listings on e-commerce sites.
Digital fashion startups may seek a lawyer's help to establish a brand identity that is easily identifiable and distinguishable from competitors. This can include creating a unique and consistent logo, using unusual colors and patterns, and building a strong social media presence. These components of a recognizable brand identity make it more difficult for counterfeiters to replicate their products and can make it easier for customers to identify legitimate products.
Fashion brands may find it advantageous to work with industry groups and organizations to help protect their IP online. For example, the International Anti-Counterfeiting Coalition (IACC) is a non-profit organization that helps companies protect their IP and take legal action against counterfeiters. Additionally, the U.S. Customs and Border Protection (CBP) and the U.S. Immigration and Customs Enforcement (ICE) both have programs in place to help companies protect their IP and stop the importation of counterfeit goods.
As digital fashion matures and becomes more integrated into both metaverse and traditional retail, industry players will be presented with potential partnership, distribution, and marketing opportunities. A law firm that has evaluated, negotiated, and drafted contracts and other business documentation specifically for this area provides distinct advantages to its clients. These lawyers will ensure all parties' rights and responsibilities are adequately spelled out, the language is legally binding, and the consequences for failure to comply are defined.
A fashion-focused law firm will also consider the other standard clauses contained within these contracts. Fashion and other creative clients will want to know how their designs will be used, whether they have any say in how they are distributed, and if they are allowed to enter similar agreements with other distributors and licensors. If the deal is exclusive to a territory, it should expressly include the time period covered and whether its expiration marks the end of the deal or merely the exclusivity. The more liberal the rights the creator surrenders, the higher the compensation the designer should expect.
As the fashion industry continues to expand into the Web3 space, it is important for fashion brands to seek utility and design patent, trademark, and copyright protections for these innovations. With estimates that the digital demand for fashion and luxury brands could reach $50 billion by 2030, securing intellectual property protection for phygital fashion designs and experiences will only become increasingly important. It is in the best interest of my clients to confer with their IP counsel early in developing and implementing these innovations to maximize protection and leverage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.