Fashion and Apparel Online Brand Protection

1. Fashion and Apparel Online Brand Protection Fashion is about design. The fashion business is also a lot about creating intellectual property assets, from unique branding elements to colours, prints, and patterns. Intellectual property rights foster creativity and innovation in the world of fashion, which seeks the protection of all aspects of its creations. Fashion goods such as apparel, shoes, and bags are useful items, and this characteristic affects their intellectual property rights. Yet, the fashion industry finds creative ways to protect their assets and works to stop others from offering counterfeits, replicas, imitations, and knock-offs. Here is a look at protecting the intellectual property of fashion brands. “You either know fashion or you don’t,” said Anna Wintour. Let’s get to know fashion law. Fashion Law A design refers to an appearance such as lines, colors, texture, materials, and other elements. A creative fashion idea, such as a specific striped

2. pattern, is intangible. Protection is granted only to an idea that is tangible in a specific physical item. So how can a fashion creative idea be protected? Through prohibiting the copy of physical items that portray the intellectual asset. In our example, products that present the specific striped pattern. Jurisdictions across the world have different protections for fashion. EU Community Design Rights In the European Union, the protection of fashion designers is substantial. Intellectual property includes registered and unregistered community design rights that protect garments and accessories as a whole or just a part of the product, in addition to national systems of protection in each Member State. Article 3 of the Community Designs Regulation defines “design” as “the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation”. The Regulation protects designs that are new (there is no identical design that is available to the public) and have individual character (in the eyes of an informed fashion user). Most fashion designs do not have a unique form, but since their novelty is assessed by one-to-one comparisons, just one unique feature, such as a specific striped pattern or embroidery, may create a unique impression and grant the IP protection for the specific feature or the item as a whole. A registered Community Design gives its holder the exclusive right to use it and to prevent others from using it without consent. Yet, fashion brands register mainly designs that are not for clothing but for accessories, such as watches and sunglasses, which have different protections. Unregistered community design is another solution for European designers and fashion brands. To gain protection against unauthorized copying, you only need to make the design available to the public. The duration of this intellectual property protection is three years.

3. Copyright Law Copyright law is the primary protection for US designs, although fashion brands often use trademarks for IP protection. Copyright protection is created together with the work, although there are good reasons to register them (see more in our blog article on: Why it is Important to Register Copyrights). The owner has the exclusive right to reproduce, distribute, license, and prepare derivative works based on the copyrighted work. Copyright protection does not usually extend to the design of useful goods, such as apparel, glasses, and bags. As a result, fashion items do not qualify for copyright protection as a whole. Separation of the creative elements from the “useful article” allows for the protection of specific elements of fashion designs, if they meet the bar of creativity and originality and are fixed in a tangible medium. However, it does not protect the fashion item as a whole. The issue was discussed before the Supreme Court in Star Athletica, LLC v. Varsity Brands, Inc. The Court examined whether a feature of a useful article such as cheerleading uniforms can gain copyright protection. The majority of the Court held that, “a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work – either on its own or fixed in some other tangible medium of expression – if it were imagined separately from the useful article into which it is incorporated.”

4. Trademark Law Trademarks play an important role in the world of fashion. A Trademark is usually a word, phrase, symbol, design, or a combination of these that identifies and distinguishes the source of the goods. Logos, brand names, and even colours allow consumers to recognize the makers of fashion items. Today, there is a demand for logos to appear on garments and bags where they are visible. Brand-conscious customers, such as millennials and Gen- Z, like to wear their logos where others can see them in person or on social media. A logo on a product is also a way for brands to protect aspects of their fashion creations. The protection is not limited to words and logos but also covers other features. For example, luxury fashion house Burberry has trademarks for both its logo and the iconic Burberry Check pattern of tan, black, and red. And Christian Louboutin’s red sole trademark protects its lacquered red sole design (when contrasting with the upper part of the shoe). Trademark protection allows brands to enforce their rights in the territories in which they are registered or used. The first-to-use system in the US and

5. other jurisdictions is different from the first-to-file system, which governs trademarks in some territories. China, for example, is using a first-to-file trademark system. In this system, intellectual property rights go to the first party to register the trademark, a process that requires no proof of use. Read more in this blog article: How to Register a Trademark in China. Trademarks do not have a fixed duration and as long as the owner continues to use the mark, and it continues to identify its goods rather than becoming generic, the rights can last indefinitely. Trade Dress This type of trademark protection protects the appearance (“dressing”) and packaging of products, as well as the design of a product. It applies to

6. fashion because it protects the “‘total image and overall appearance’ of a product, or the totality of the elements, and ‘may include features such as size, shape, color or color combinations, texture, graphics’”, as quoted by USPTO. Trade dress cannot have a “functional” purpose. It has to identify a source, as does a regular trademark (such as a logo), and create a likelihood of confusion for consumers. The design also has to be “distinctive” rather than generic, either because it is “inherently distinctive” or it has acquired a secondary meaning. To establish a secondary meaning fashion brands usually present facts that include consumer surveys showing that consumers associate the trade dress with a specific source, unsolicited media coverage, proof regarding the length and exclusivity of use, and more. Trade dress protects fashion if it is registered as a trademark or it may be protected under common-law rights through use. Patent Protection A registered patent can protect a specific design, and allow the patent holder to prevent other from imitating it. Clothing and accessories can sometimes be patented as a whole with a design patent, based on new, original, decorative, and non-functional features. A design patent is more difficult to obtain than copyright protection. Due to the time it takes to register and the costs associated with it, it is mostly used by bigger luxury brands that expect to sell in big numbers over time and so seek to protect their assets. Patent protection also allows them to license other parties or sell their right. Fashion violations Fashion IP rights are violated in various ways on a growing number of platforms, and most of all, social media platforms. The endless selection of designs online makes it hard to detect counterfeits. Most fashion brands use logos and labels that give them protection under trademark law and

7. make it easier for them to detect imitations and for consumers to identify the brand. Counterfeiters, on their part, try their best to copy the fashion design and the logo or any other identifying mark. With superfakes on the rise, it is more challenging than ever to tell originals from counterfeits. Wiser Fashion The way to protect fashion starts with intellectual property rights: Designs, Trademarks, Copyrights and Patents. Intellectual property rights are significant in the highly competitive fashion industry, but only if violations are monitored and enforced. The attempt to manually tackle counterfeit fashion and other online infringements is daunting, time-consuming and costly. It’s an online world and the way to face the challenges it presents is by applying advanced technology. Wiser Market offers fashion designers and brands an automatic solution for online brand protection with unrivalled results, combining advanced technology with unique eCommerce know-how, to help you overcome the challenge of counterfeits damaging your brand. We take the pain away, and allow you to focus on growing your brand.