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IP in Fashion - Background

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author/source: Geoff Caesar
ipfashionbackground
Aweless and HJOL - Sketch (c) Oliver Goodrich _picmonkeyed

Background

The fashion industry is a huge, global industry involving many people and significant sums of money. It touches almost everyone as users and, also, a large array of individuals in the overall design, manufacturing and distribution process. For the purposes of this series of articles, the “fashion industry” refers to the manufacture and sale of items of clothing and related accessories.

For centuries clothing has been a topic of interest for many individuals for a variety of reason, whether as a physical necessity to provide protection from the elements, a statement of individuality or personality, or as a uniform to prompt recognition or respect. Today the fashion industry is a very important part of the world economy. The British Fashion Council reports that the current value of the UK fashion industry to the UK economy is over £28 billion (Oxford Economics 2016).

To fund this global business, fashion items, garments in particular, have developed over the years a transience or in-built obsolescence; this is the essence of fashion. In the words of Coco Chanel “fashion is made to become unfashionable”.

A classic Burberry trench coat is an investment that retains its place in the wardrobe, as a timeless design. By contrast the trend of the “megging” was short lived. The transient popularity of trends or particular designs fuels and funds the fashion market. The transience and importance of trends or “fashion” may go part way to explaining why litigation is perceived by some fashion companies as expensive and time consuming and not a cost-effective solution to protect a single item from one season’s collection of more than 100 or more different designs.

The purpose of this series of articles is to look at how intellectual property (IP) rights impact on and have relevance to the fashion industry given its nature and the very transience of fashion. An understanding of the fashion industry and its unique features helps put the use and relevance of IP rights in context.

Another objective of this overview is to debunk certain myths which seem to dog the fashion industry such as:

  • ”The Five Changes” rule, namely if a designer makes five small changes (or, as sometimes claimed, three or seven changes) to an existing design, no complaint of copying can be made.
  • The irrelevance and expense of IP rights; they are too expensive to obtain and too time consuming and difficult to enforce.

Whilst there is no easy answer to the perennial problem of how to spot the next iconic “must have” design and to protect it so that the designer and fashion house benefit most from it, it helps to:

  • Understand the scope of protection available and what is realistically achievable and worthwhile in today’s market.
  • Develop a cost-effective strategy by using the design registration system to provide protection for key elements of designs and some designs themselves.
  • Understand the tools available to enforce rights.

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