Protecting your IP in the Fashion Industry

Protecting your IP in the Fashion Industry

For a Fashion Industry, 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.

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.

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.

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 TM 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.

In the fashion industry, 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.

The recent case of Star Athletica LLC in the US which centers itself on the copyrightability of design on the cheerleader uniform shows the importance and depth of IP in the fashion industry. The US Supreme 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.

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.