Fashion is always changing, becoming something new, sometimes reinventing itself, but above all it follows the seasons. To make this possible, it must be backed by an industry that works tirelessly, innovates and listens to consumer perceptions, that observes, studies and researches. Paradoxically, in an industry like fashion that’s bound by seasonality, it requires that the industry behind it be exactly a-seasonal, ready to play on and never stop. And these challenges are also delegated to fashion law, which has to find contemporary solutions that are geared to the needs of market participants and consumers.
Over the years, the fashion industry has increasingly focused on sustainability, supply chain transparency, labor conditions and even intellectual property rights protection, prompting companies to invest in choices that reflect a willingness to walk down these avenues. This has meant that the gap between the fast fashion giants and independent designers has widened, resulting in the latter being appreciated by an ever larger segment of the public, but they also face the greatest risks related to injuring their intellectual property rights were exposed. From a legal point of view, although the issue of protecting the intellectual property rights of fashion designers has always been controversial, it has always been relevant, so it is important not only to discuss it, but also to work on future prospects.
The first legal problem to be dealt with is the protectability of fashion creations such as clothing and accessories. They are protected primarily under the Copyright Act and in particular under Article 2 No. 10 of the Italian Copyright Act, which is included among the protected works of industrial design, having a creative character and artistic value. The provision of such requirements, which certainly represent an additional barrier to access to government protection, is justified by the serial determination of the products in question. And while with regard to the requirement of creative character, proof of an individual contribution by the author to the creation of the work that expresses his personality is considered sufficient, the requirement of artistic merit is acrimoniously debated. First, remember that this Quid Pluris not harmonized, but only in some states, including Italy, as well as the famous Cofemel judgment of the European Court of Justice of 2019 (C-683/17 – Cofemel – Sociedade de Vestuário SA). Therefore, with reference to the opinion shared by our jurisprudence, it is considered that this requirement exists when there is objective evidence, such as exhibitions, museums or by publication in specialized journals, award ceremony, etc. However, for fashion creations it is particularly insidious to seek protection as copyright access protected works and, where conceivable, perhaps more plausibly for the creations of great ones maison than emerging and independent designers.
A more effective means of protecting fashion creations is registration as a design. To enjoy such protection, which lasts five years from the date of registration and can be renewed up to five times, it is sufficient to demonstrate that the products have novelty and individual character. There is also a smaller protection of three years from the date of the first publication of the product to the public, which is granted to unregistered designs that are new and have an individual character. However, the date of disclosure and proof of infringement are not always easily provable elements.
In addition to these tools, there are trademark protections that seem less applicable to new products from aspiring designers. Finally, the rules of unfair competition are often invoked by creators of taste and fashion, particularly in relation to the hypotheses of slavish imitation of the form and style of the product, appropriation of merit and parasitic unfair competition.
Now that the subject of the protectability of fashion creations and the rights that arise in the hands of the authors has been exhausted, it seems appropriate to deal with the equally controversial question of the granting of rights by designers. In an industry like fashion, where infringement of intellectual property rights is a daily occurrence, there is always a search for leaner forms of contract than “standard” ones such as copyright assignment agreements or trademark or design license agreements. In this sense, the idea of Stefan Siegel, founder of “Not Just a Label”, a platform founded in 2008 dedicated to up-and-coming and independent designers, is certainly worth mentioning. It connects them with direct customers on the one hand (b2c platform) and on the other hand with companies interested in their products (b2b platform). However, the biggest novelty of Not Just a Label is undoubtedly that related to the launch of an intellectual property rights marketplace that the platform will implement from 2023 and under which it has initiated a $10 million fundraiser. Such a system allows companies to acquire intellectual property rights from designers to reproduce their items, guaranteeing them an anonymous income stream. It will certainly set an important precedent that, like blockchain technology, will lead to further guaranteeing the authenticity of products. The latter, through decentralized registers that can be modified by several people at different times, immutable and traceable, allows to really monitor the history of the product and preserve its uniqueness.
In conclusion, we can only reiterate the importance of protecting intellectual property rights in the fashion and luxury sector, as demonstrated by the Not Just a Label initiative. In fact, investing in intellectual property means nothing more than investing in the brand itself.