Trends in Fashion IP : The Importance of IP in Luxury Fashion

@Sfondo Louis Vuitton

Introduction

Fashion brands are built on creative concepts and ideas and strive for uniqueness, and exclusivity in the case of luxury fashion. This is where intellectual property (IP) comes into play, designers and fashion houses alike have to understand how to manage their IP such as copyrights, trademarks, patents, amongst other forms of IP. IP is an integral element for every luxury fashion brand since the goal of distinguishing will help build exclusivity, craftsmanship and brand identity which drive sales in the luxury fashion market. 

Oftentimes, these luxury fashion brands find themselves caught in significant legal battles regarding their IP rights and trademarks. The use of trademarks and copyrights in the fashion industry helps brands and designers strengthen their competitive advantage in a global economy and within the creative community to assert ownership of their creations and brand DNA. 

For instance, the Christian Louboutin red sole is a house code of the brand that makes it part of its DNA, when you see the red sole, that’s how you know its shoe because the trademark on the red sole protects the uniqueness of the brand and distinguishes it from other luxury shoe brands like Jimmy Choo or Manolo Blahnik. 

Types of IP used in the fashion industry

In order to protect creations in the fashion industry such as clothes, bags, shoes and so on, different types of IP are used depending on what we aim to protect. 

Trademarks 

Trademarks are an ensemble of signs, colors, letters, sounds etc that aim to distinguish a company’s goods and services from those of others. They can help establish the brand’s identity and reputation like the iconic monogram logo from Louis Vuitton. Having a trademark helps consumers as well, so they know that the different items they are purchasing all come from the same brand. Once registered, a trademark allows the owner to exclude others from using the same words or logo etc then in your registered trademark especially since confusion is not allowed according to section 6 of the Trademark Act. This will ensure protection for 10 years before it must be renewed.

Copyrights 

A copyright is another IP tool that can be used in the context of luxury fashion, which unlike the trademark, does not require registration to be protected under the Copyright Act. A copyright is the legal right to produce, reproduce, publish or perform a piece of literary or artistic work like clothing or any product of the fashion industry. Although, since ownership disputes are common in the luxury fashion space, it is more practical to register the copyright to presume our ownership of the piece of artistic work. 

Patents 

A patent can be used by a luxury brand to safeguard an invention, a product or particular process that brings new and useful improvement to what's already on the market. This will give the inventor 20 years to prevent others from using or selling their invention. The inventor will have to publish the information of the protected invention. Patents in the fashion industry can include the process by which fabrics are woven, fabrics made from renewable sources, waterproof clothing and so on. A perfect example of this is the 3D printing process used to make Iris Van Herpen’s innovative and unique gowns. 

Trends in Fashion IP

In the fashion industry, when it comes to IP there are many recurring patterns. Some of these trends include the following : fast fashion brands duplicating luxury designs, the use of AI and technology to infringe on luxury brand trademarks, trade secret claims and many more, let's dive in! 

Fast Fashion Duplicates “Dupes” 

Fast fashion retailers are very well known for duplicating products such as clothes, bags and shoes from luxury brands and selling them at a lower price. This is part of what makes it so appealing to consumers according to research.

Literature findings regarding value consciousness imply that the high prices of luxury pieces largely contribute to counterfeit consumption since these pieces help fulfill the expectations of luxury consumption. Although this is a strong driving factor of fast fashion consumption, this harms intellectual property rights of luxury brands. These counterfeits are also the cause of major loss of revenue for luxury brands, totalling a staggering USD 467 billion in global trade in 2021 according to OECD and EUIPO. Another common conclusion from researchers is that the luxury appeal replicated by fast fashion products is also a source appeal to younger consumers.

This comes at a cost to luxury brands and their intellectual property assets, which is why trademarks are vital to ensure brand protection and have been the subject of many legal cases. An example of this is the Louis Vuitton Malletier S.A. v. Yang, 2007 FC 1179, case. 

Louis Vuitton accused the defendant of selling counterfeit Louis Vuitton products in their K2 Fashions stores. After two judgments of the Federal Court in Vancouver, numerous letters, seizures and other actions, Louis Vuitton had difficulty shutting down the K2 Fashions illegal activities. In this case, Louis Vuitton accuses the defendant of infringing on their trademarks, therefore violating the Trademarks Act by selling counterfeit Louis Vuitton products as the real deal. The defendant is also accused of selling products that violate Louis Vuitton;s copyright against the Copyrights Act. 

The Louis Vuitton trademarks in question are associated to fashion accessories whereas the copyright is 

in association with multi-coloured monogram prints used on various products. Moreover, Louis Vuitton (“LV”) Canada, the plaintiff is the only authorized manufacturer and distributor of real LV products. 

In this case, the Court ruled in favor of Louis Vuitton in both the trademark and copyright infringement claims and awarded punitive damages to the defendant. This case serves to show how important trademarks are in the fashion industry, especially in luxury fashion. This case also gives a legal perspective on the rising issue of counterfeits.

The Challenges of the Digital Fashion World

As our society becomes more adept with technology, AI and rendering tools, online creators have also replicated trademark luxury designs. This now leads us to ask many new questions on if the trademark still applies or if the same trademark laws will apply to a digital Rolex compared to the physical watch for example. This phenomenon is so new that there are no recorded Canadian cases relating to this trend. The United States however have had cases discussing these issues such as the notable Hermès v. Rothschild case, the MetaBirkins case. 

This was a trademark battle between the parties since the creator had depicted fur-covered Birkin bags on an online platform. The Birkin is one of Hermès’ most famous bags that serves to identify the brand symbolizing luxury status, it is therefore an infringement of the trademark Hermès possesses. The U.S. Court of Appeals finally ruled that Rothschild had infringed the luxury house’s trademark. 

Even if we are once again discussing trademarks, this is a new trend in the world of luxury fashion IP as the digital world is taking up more and more space in creative endeavors. 

Conclusion

Intellectual property is more than a legal formality, it's an integral part of the luxury fashion industry to help these brands remain protected and their image of exclusivity. IP in the luxury fashion space is more important now than ever before when we consider the success of luxury counterfeits by fast fashion retailers as well as the expansion of the digital world. 

IP tools such as trademarks, copyrights, patents, industrial designs are therefore of the utmost importance to sustaining innovation, exclusivity, and brand identity. This is why it is crucial that designers, luxury houses, businesses and the legal community remain informed about the evolution of the luxury market and creative space to ensure luxury brands are protected using the right IP and strengthening their competitive advantage in a global economy.