Hot off the heels of the Olympic Games starting, South Africans had mixed reactions about the design team SA’s Olympic uniform. We’re not going to delve into the aesthetics of the outfits but what we would like to discuss is innovation in the fashion industry. Fashion designs are unique, they present new patterns and are pleasing to look at. These are all elements required to obtain intellectual property protection. Coco Chanel once said, “In order to be irreplaceable one must always be different”, this is the essence of innovation.
A lot of small and medium companies rarely pay attention to protecting their unique fashion designs which constitute their intellectual assets. Innovation and original creative expressions offer companies a competitive advantage, this includes those in the fashion industry1. There is a portfolio of IP rights that can be protected in fashion, and we will discuss a few of these below.
Source: Financial Times
Registered Designs
The core of fashion is fresh, new designs1. This includes handbags, jewellery, clothes, and shoes amongst others. Another aspect includes the print on textiles or materials. These can all be protected under registered designs. Let’s recap what a design is, an aesthetic design protects an appearance of an article. If a product has new and original features, they can be protected with a design registration. These features can be a pattern, a shape, configuration, ornamentation or a combination of any of these. These designs are pleasing to the eye and are judged solely by how they look, irrespective of the aesthetic quality.
An aesthetic design affords the owner of the IP right 15 years of protection. This could be considered an eternity especially for fashion items that are only relevant for one season which could last from six to twelve months1. However, consideration must be given for items that do not go out of fashion and remain relevant with each passing season. These include Hermes and Louis Vuitton handbags; textile prints such as those used in clothing from Maxhosa designs; and shoe designs from Gucci and Christian Louboutin amongst others. Coco Chanel designed the classic Chanel suit in the 1930s and it remains relevant to this day1. For such designs with a long lifespan, it may be worthwhile to file for design registration to prevent other designers from copying your creations1.
Source: Pinterest
Trade marks
The importance of trade marks cannot be stressed enough. This is mostly the first point of connection between customers and a brand. Therefore, a lot of big fashion houses are fiercely protective of their brands1. There is a lot of equity in the brand itself. As an example, Louis Vuitton’s brand equity was valued at $14.89 billion in 20212. Fashion houses protect their brand names through trade mark registration and some of the associated art work enjoys copyright protection1.
Trade marks are as important for big fashion houses as they are for small and medium enterprises. As soon as a designer wants to start their own brand, the first point of call must be protection of their brand name and other relevant intellectual property rights. Fashion involves the ability to monetize a distinctive brand5. Even Julius Caesar knew the value of trade marks in 46 BC, where he attempted to obtain trade mark protection. For the famous phrase that he uttered “veni, vidi, vici” which translates to “I came, I saw, I conquered”3. His rival, Cicero, obtained trade mark protection for the phrase before Caesar while he was out of town though3.
Patents
More often than not, we do not associate the fashion industry with patent rights. However, patent rights have played a significant role in providing companies a competitive advantage1. For example, in 1987, a Danish company in the biotechnology field invented a method of using enzymes to treat fabrics1. The treatment of “stone washed” denim jeans1 revolutionised fashion since it gave the denim a worn look which is still in fashion today. The company holds over 4 000 patents.
There are other relevant IP rights such as know-how and trade secrets that are relevant in the fashion industry. The important thing is to realise the value of the intellectual capital that exists in fashion design and how to adequately commercialise it to extract value from it. One must never downplay the value of one’s creation, so as soon as you get a creative idea and wish to start a business in fashion, contact Tshaya Mashabela Attorneys and we will assist you with identifying the IP relevant to your business, assist you to develop an IP strategy and protect your IP.
Written by: Tumelo Mashabela, Managing Director and Registered Patent Attorney
For all your IP, commercial and corporate law services, please contact us on 012 942 8710 / info@tm-attorneys.africa. You can also find us on social media platforms with the handle @TshayaMashabelaAttorneys (@TshayaMashabela on Twitter).
References:
- https://www.wipo.int/wipo_magazine/en/2005/03/article_0009.html
- https://www.statista.com/statistics/980552/louis-vuitton-brand-value-worldwide/
- https://www.dossey.com/blog/2015/march/oldest-trademarks-in-the-world/
- https://www.thefashionlaw.com/intellectual-property-rights-a-primer/
- https://www.thefashionlaw.com/intellectual-property-rights-a-primer/
