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Fashion Law Special Issue - Fashion and IP: in search of the perfect fit (Editorial)
Favouring clean and essential lines, iconic designer Cristóbal Balenciaga used to say that ‘Elegance is elimination’. But is the same, ie that less is more, also true for the legal protection available to fashion creations, accessories, and all those elements that populate the universe of la mode?
In this special issue of the Journal of Intellectual Property Law & Practice(JIPLP), co-edited with Carina Gommers (JIPLP Editorial Board and Hoyng Rokh Monegier) and Sarah Harris (JIPLP Managing Editor), we explore a number of topics relating to the protection of fashion by means of intellectual property (IP) rights. Our authors, who have tackled relevant issues in different jurisdictions and in a number of legal areas, provide readers with an in-depth analysis of some of the most significant developments and challenges facing IP law in this particular sector.
Three main themes are thus explored.
The first one relates to protection. This is a concept that concerns, first, the protection of fashion creations, and signs used to distinguish the products of a certain undertaking from those of other undertakings. The legal saga concerning validity of the Louboutin red sole as a trade mark in a number of jurisdictions showcases the problematic nature of setting an optimal balance between IP protection and free competition. ‘Protection’ may thus have another meaning: it is also about protecting subjects other than designers and fashion houses, including competitors, workers in the fashion industry, and consumers alike. We investigate whether and to what extent models may be regarded as akin to performers and be vested with performers’ rights. We also tackle the increasingly pressing issue of undisclosed advertising by means of sponsored posts. We travel all the way to the United Arab Emirates to learn more about the regulatory approach to social media influencers in that country, at a time when different jurisdictions have adopted or are considering introducing ad hocframeworks with the stated goal of protecting consumers.
The second theme is enforcement. Effective enforcement has proved particularly problematic in the fashion sector, with phenomena like ‘fast fashion’ proving challenging to tame. Our contributions however send a message that, if not altogether positive, is at least one of hope: things are changing and increasingly interesting solutions have been provided at both the legislative and judicial levels. Decisions like that of the Court of Justice of the European Union in Nintendo, C-24/16 and C-25/16, EU:C:2017:724 are good news for holders of design rights. Owners of trade marks with a reputation have been increasingly provided with a clearer idea of how far protection of their signs may go in different jurisdictions, including Europe and China. Copyright is also available in certain jurisdictions for less conventional works, like a store layout. In addition, online enforcement through the involvement of intermediaries has proved a significant tool in the fight against counterfeits.
The final theme is creativity. An optimal IP regime is one that protects effectively the holders of existing rights and the cultural heritage of a certain community, while not stifling the creative work of others. This is particularly true for fashion, where trends, discoveries and re-discoveries are possible thanks to the cumulative efforts of those working in this sector at different levels: designers, fashion houses, journalists and bloggers, celebrities, consumers, and … even lawyers! We travel to Africa to learn more about how the Maasai, an ethnic group that has traditionally led a semi-nomadic life across southern Kenya and northern Tanzania, have been reclaiming ownership of their name, image and reputation and fighting against their unauthorized appropriation and re-use also in fashion. We consider the phenomenon of home-sewn copies of fashion creations in Finland, and the extent of trade secrets protection in the fashion sector.
As early as the 19th century Louis Vuitton had understood the importance of vesting his products with legal protection: to avoid being copied in the aftermath of the great success of his flat-top travel trunk, he first introduced a striped canvas (Rayée) and then a chequered pattern (Damier) to distinguish his own products from those of others. Today effective protection of fashion creations remains as crucial as ever, and so is the need to set an appropriate balance between this and third-party interests and rights. Enjoy JIPLP’s fashion law special issue!