Fashion always changes, turns into something new, sometimes reinvents itself, but most importantly, it follows the seasons. To make this possible, there must be an industry behind that works relentlessly, that is innovative and that listens to consumer perceptions, that observes, studies and researches. It is required, paradoxically, that in an industry like fashion, which is tied to seasonality, the industry behind it is precisely “a-seasonal,” ready to play ahead and never stop. And these challenges are also delegated to the law governing fashion, which is required to find solutions that are in step with the times and aimed at meeting the needs of market players and consumers.
Over the years, the fashion industry has become increasingly attentive to sustainability, transparency of the production chain, workers’ conditions, and even the protection of intellectual property rights, leading companies to invest in choices that fully reflect a willingness to pursue these paths. This has caused the gap between the fast fashion giants and independent designers to become more and more pronounced, causing the latter to be appreciated by an increasingly large portion of the public, but also exposing them to the greatest risks related to the violation of their IP rights. In fact, from a legal point of view, while the issue related to the protection of fashion designers’ IP rights has always been controversial, it never ceases to be topical, so it is not only important to discuss it, but also to work out future perspectives.
The first legal issue to be addressed is that of the protectability of fashion creations, such as garments and accessories. They can find protection, in the first place, under the Copyright Law and, in particular, under Article 2 no. 10 of Italian Copyright Law, which includes among the protected works those of industrial design that have creative character and artistic value. The provision of such requirements, which certainly represents an additional barrier to accessing authorial protection is justified by the serial destination of the products in question. And while, with regard to the requirement of creative character, it is considered sufficient to prove that the author has made an individual contribution in the creation of the work that expresses his or her personality, the requirement of artistic value is bitterly debated. First, it should be recalled that this quid pluris is not provided for in a harmonized manner, but only in some states, including Italy, as also demonstrated by the famous 2019 Cofemel ruling of the European Court of Justice (C-683/17 – Cofemel – Sociedade de Vestuário SA). Therefore, referring to the opinion shared by our jurisprudence, it is considered that this requirement exists where there are objective indices, such as recognition by cultural and institutional circles of the product, the demonstration of the existence of aesthetic and artistic qualities demonstrated by exposure in exhibitions, museums or through publication in specialized journals, the awarding of prizes, and so on. However, it is particularly insidious for fashion creations to access protection as copyrighted works and, where conceivable, perhaps more plausible for the creations of large maison than in the case of emerging and independent designers.
A more effective mean of protecting fashion creations is through registration as a design. To enjoy such protection, which lasts five years from the date of registration and is renewable up to five times, it is sufficient to prove that the products are endowed with novelty and individual character. There is also a smaller protection, of three years from the date of first disclosure of the product to the public, granted to unregistered designs that are new and have individual character. However, the date of disclosure, as well as proof of infringement, are not always easily provable elements.
In addition to these tools, there is trademark protection, which seems little applicable to new products by emerging designers. Finally, to be frequently invoked by the creators of taste and fashion are the rules on unfair competition and in particular relating to the hypotheses of slavish imitation of the form and style of the product, conduct of appropriation of merits and parasitic unfair competition.
Having exhausted the topic concerning the protectability of fashion creations and the rights that arise in the hands of creators, it seems appropriate to mention the issue of the assignment of rights by designers, which is also controversial. Indeed, in an industry such as fashion, where infringement of intellectual property rights is the order of the day, there is always a search for more streamlined contractual forms than “standard” ones such as copyright assignment contracts or trademark or design licensing agreements. In this sense, the idea developed by Stefan Siegel, founder of “Not Just a Label”, a platform founded in 2008 and dedicated to emerging and independent designers, is undoubtedly worth mentioning. It connects them, on the one hand, with direct customers (b2c platform) and, on the other hand, with companies interested in their products (b2b platform). However, the biggest novelty of “Not Just a Label” is undoubtedly the one related to the launch of an intellectual property rights marketplace that the platform will implement starting in 2023 and, under which, it has initiated a 10 million dollars fundraising. Through such a system, companies will be able to purchase intellectual property rights from designers to reproduce their items, guaranteeing them an anonymous income stream. It will certainly be an important precedent that, like blockchain technology, will lead to further guaranteeing the authenticity of products. The latter, in fact, through decentralized registers, which can be modified by multiple people at different times, immutable and traceable, makes it possible to truly monitor the history of the product and preserve its uniqueness.
In conclusion, we can only reiterate the importance of protecting intellectual property rights in the fashion & luxury sector, as demonstrated by the “Not Just a Label” initiative. Indeed, investing in intellectual property means nothing more than investing in the brand itself.