Fashionably Securing Your Intellectual Property Rights
February 23, 2023
Written by: CALDWELL
The fashion industry is constantly evolving with new styles and trends. Each season unveils exciting new garments, leaving fashion designers continuously striving to produce fresh ideas that will appeal to consumers looking for the next big trend. However, with each new trend also comes the inevitable copycats, leaving brands and designers vulnerable against counterfeiting, knockoffs, and unfair competition.
This global apparel market currently stands at USD1.5 trillion and is projected to grow to about USD1.94 trillion by 2027.¹ This projected growth in revenue is an indication that the demand for clothing, shoes, and accessories is on the rise. For this reason, designers and fashion houses choose to protect their intellectual property (IP) that originates from these stylish innovations through various IP protections.
What are Intellectual Property Rights?
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of their creation for a certain period of time².
Intellectual Property rights in fashion include protection of garment and accessory designs, their utility, and mark of which the articles are identified in the market. IP has become essential in this multi-billion-dollar industry and has contributed to exponential growth and expansion of companies in the market. Fortunately, these laws exist to assist designers in protecting their designs. They provide rights that may be used to take legally enforceable action against unauthorized copying.
Dolce & Gabbana Fashion House Patents and Trademarks
In The Fashion Law Network podcast, Patent Attorney and Fashion enthusiast, Kasia Zebrowska-Trauben discusses fashion related legal news and lawsuits, including the fashion house, Dolce & Gabbana. Known for their luxurious and high-end clothing, Dolce and Gabbana has been granted several patents over the years. According to the United States Patent and Trademark Office (USPTO) database, the Italian fashion house owns over 30 patents, mostly design, and over 40 trademarks.
Some of their patents include a method for printing fabrics and a method for treating leather garments. Additionally, they have been granted patents for their iconic logo and for their trademark designs, often a combination of traditional Italian craftsmanship, modernity, and innovation, making them a well-known and respected brand in the fashion industry.
Infringement & Trademark Parody
Dolce & Gabbana has been involved in various trademark disputes, including a famous case from 2012. Dolce & Gabbana filed a trademark infringement lawsuit in South Africa against a local gift shop called “Dolce & Banana” stating that the store “makes a mockery of the well-known trademark, Dolce & Gabbana” and demanded a name change.3 Could a parody defense have been used against the trademark infringement lawsuit?
A trademark parody must convey two simultaneous and contradicting messages: that it is the original mark, but also that it is not the original [expressing ridicule so that people can tell it is not connected to the original] and is instead a parody.4 Ultimately, the 12-year-old local gift shop business, that had developed into a tourist attraction, allegedly did not have the financial means to fight the lawsuit, so they changed the name of the store to …&Banana, omitting the word “Dolce.”
It is important for designers to know that options exist with respect to protecting the innovation and creativity of their work. The lack of IP protection brings with it vulnerability, resulting in many designers having to fight against the infringement of their fashion designs, which demands time, labor, and cost.
As seen in the Dolce and Gabbana case, the fashion house decided it was important that their commercial image be protected, since, by not doing so, it is left at risk to the image (which is already identifiable by the public and associated with a certain brand) as being confused when faced with copies of that commercial image.
Planning early in the design process and realizing that overlapping protections apply may provide extra leverage in disputes with others regarding similar or copycat designs. Also, once infringement is suspected, brands should investigate, seek legal counsel, and act as recommended. Being proactive about IP rights and focusing efforts on enforcement can help establish a reputation that deters the production of counterfeit goods.
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