Intellectual Property considerations for Fashion Labels


Posted by John Shaw, 14th February 2020
London Fashion Week presents a great opportunity for labels to showcase their designs.  Catwalks, exhibitions and fringe events contribute to the city-wide celebration of fashion taking place over the next few days.

Below are a few intellectual property considerations that up-coming label owners should have when it comes to maximising the value of their designs and also protecting them from fast fashion copies.

Copyright

Understanding copyright is essential for fashion labels.  Copyright is the material fixation of an original idea – it covers the artist sketches, the design drawings, the fabric prints and even the photographs of the cover shoot.

Copyright in the UK arises automatically and understanding how and when will enable brands to achieve two important goals. First, the brand will be able to protect the original work by preventing copies of the work, often produced at a cheaper cost and lower quality, coming onto the market and resulting in the loss of revenue or the dilution of brand value. Second, the brand will be able to avoid infringing on the copyright of others and sidestep unnecessary claims.

When commissioning a fashion shoot or other marketing material, the label should ensure that it has a formal agreement with the photographer which clearly sets out the assignment of copyright in the photos and editing rights. The brand should also consider including a waiver of moral rights so that it is not required to identify the photographer as the author (unless it would like to).  The fashion label should also ensure that it obtains release forms from the models that appear in the advert. This year, a Mercedes-Benz advert set in Detroit, which involved a mural in the background, saw the artist complain that his work had been used without permission.  Mercedes-Benz withdrew the advert but the dispute appears to be unresolved. A fashion label should consider whether any other copyright or design right protected work appears in the advert.  Think paintings, sculptures, and even cars.  The inclusion of these could create difficulties down the road if permission has not been obtained.

Influencers are now a mainstay for any fashion brand advertising campaign and this has important copyright implications.  The social media presence of a designer is becoming more and more important and individuals not only look for inspiration on Instagram and Facebook, but also to make purchases directly after viewing – see now, buy now.  Fashion labels should be aware of the copyright implications of any photo taken for the purposes of an advertising campaign, particularly when influencers are involved.

Another point to note that is relevant to any social media campaign is that crediting a photo when re-posting it, is not the same as obtaining permission to reproduce a copyright work and permission is required to avoid any claim. Use of work protected by copyright without permission has been a stumbling block for celebrities this year. Model Gigi Hadid was involved in a dispute in the USA relating to her reposting a photograph of her taken by a professional photographer. Although the claim was dismissed, use of original work created by others without permission should be avoided.  A well drafted influencer agreement will ensure that it is clear which party is responsible for what when promoting the fashion label.

Community design rights

The unregistered Community design right covers a wide range of products. It arises automatically and lasts for three years – which makes it well suited for the protection of fashion designs given the continuous introduction of new styles.  The definition of design can include the lines, contours, shape, texture and even the material of a particular product. The product must new or have individual character and this will be determined by the overall impression it has on an informed user. One benefit of the unregistered Community design right (over the UK unregistered design right regime) lies in the ability for a label to obtain EU-wide relief in the event of an infringement.

The European Commission recently held a public consultation to evaluate the EU legislation on design protection.  The summary report highlighted some interesting statistics that fashion labels may find of interest.

  • Almost two thirds of the respondents to the consultation consider that the design protection system in the EU (National design system and the Community design regime altogether) works well.
  • Almost half of the respondents to the consultation think that the awareness among designers and entrepreneurs of the availability, benefits and ways for protecting designs in the EU is insufficient.
  • Over two thirds of respondents to the consultation consider that the design protection system has helped (either a lot or a little) at preventing counterfeiting and copying.

Given the response to the design protection system, fashion labels should make themselves aware of this potential avenue of brand protection.

It is worth noting that at the end of any Brexit transition period unregistered community design rights will automatically convert to what will become known as a Supplementary Unregistered Design Right so labels will likely only be able to rely of these rights protecting designs from the next two seasons.  It will be separate from the existing UK unregistered design right and will mirror the characteristics of the unregistered community design right.

Blockchain

2019 also saw brands turn to Blockchain to tackle counterfeit outfits and ensure that consumers are able to identify the genuine article. The Global Brand Counterfeiting Report 2018, estimated that the losses suffered by brands due to online counterfeiting globally was $323 Billion in 2017.

LVMH, whose brands include Louis Vitton and Parfums Christian Dior, in partnership with Microsoft and ConsenSys announced that it had developed an Ethereum Quorum powered Blockchain platform to enable product tracking and tracing services.  This system will make it possible for consumers to access product history and receive proof of authenticity of luxury items.

MasterCard announced in August that it is launching a Blockchain-based traceability solution for high-end clothing.  Consumers will be able to scan a QR code on a product tag to see the journey from manufacturer to store.

Structural aspects of Blockchain technology make it an attractive option for labels looking to show authenticity and prevent counterfeiting.  Consumers, if provided access to the supply chain, particularly given the increase in environmental accountability, will be able to consider where luxury value comes from.  It remains to be seen whether other luxury brands feel the need to demonstrate equal supply chain transparency in order to rationalise their luxury price point.

 

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