Announcing new JIPLP Special Issue on Fashion and IP!

Back in 2018, the Journal of Intellectual Property Law & Practice (JIPLP) was among the very first academic journals to dedicate a special issue entirely to the interplay between fashion and intellectual property (IP) law.

The relevant call for articles attracted dozens of submissions and the issue was a great success.

Since then, a lot has happened at the crossroads of IP and fashion: courses have multiplied and so have conferences, fashion law research has become more common and imaginative, and several professionals nowadays refer to themselves as fashion lawyers.

Now, JIPLP wants to investigate what’s new in the world of fashion and IP, by launching a new call for articles and special issue on fashion law, which will be released in late 2024 / early 2025!

If you are thinking of and/or researching a new issue, topic, line of case law, policy and legislative developments relevant to the fashion sector and wish to write on it, we want to hear from you!

Interested authors are invited to submit articles in the range of 4,000-7,000 words on a topic of their choice within this theme for consideration for publication in JIPLP.

Relevant articles must be submitted through the online portal, be in accordance with JIPLP house style, be previously unpublished, and carry the indication that they are for consideration for the special fashion law issue. Further to a desk review, all potentially suitable submissions will undergo peer review.

The deadline for submissions is Monday, 30 September 2024. No late submissions will be considered for this special issue.

For authors interested in discussing informally the topic of a possible contribution, please email the Editor of this special issue, Prof Dr Eleonora Rosati, and/or JIPLP Managing Editor, Ms Sarah Harris.

The Editor is also considering the possible organization of an online conference/meeting with the authors of the special issue after the special issue has been published.

The Authors' Take - Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims

Governing the fashion industry (through) Intellectual Property assets: systematic assessment of individual trade marks embedding sustainable claims

by Sara Cavagnero

As public interest in sustainable fashion rapidly surges, trade marks are playing a prominent role in promoting eco-friendly products and engendering consumer trust. PRADA registered the trade mark “Re-Nylon” to signal its collection based on the regenerated-nylon yarn ECONYL, while the fast-fashion giant H&M relied on the trade mark “CONSCIOUS” to identify products made with recycled or organic materials.

These IP assets allow companies to transfer information on the so-called credence attributes, which empower consumers to select products reflecting not only their instrumental preferences but also their values. However, a missing piece of the puzzle relates to the correlation with sustainability commitments, given that the information provided is not neutral but framed by the brand and, thus, potentially contested.

The risks are clearly outlined in the report released in January 2021 by the European Commission, which revealed that 42% of green claims made by garments, cosmetics, and household companies on their websites are “exaggerated, false or deceptive”, and in 59% of cases not supported by any evidence.

The systematic assessment of 12.335 trade marks including 22 sustainability-related vocabularies filed in the United States, the European Union, and at the international level from 2000 to 2020, revealed that sustainability-related trade marks represent a modest portion of the overall number of registrations in classes 23, 24, and 25, but the growth figures are rising, in line with the general filing trends.

The untouched primacy of the term “green” suggests that corporate strategies are mainly based on green marketing principles, signalling, since the late 1980s, the positive correlation between eco-friendly shade or wording in visual branding and consumers’ judgment about companies’ actions.

Furthermore, by confirming that sustainable trade marks are largely decoupled from sustainable corporate practices, the research results validate the idea of expanding the existing taxonomy of greenwashing sins, by identifying a new form of disingenuous communications, conveyed via individual trade marks.

Still, this proposal is not flawless. Indeed, the IP regulatory framework is ill-adapted to monitor sustainability claims conveyed through individual trade marks and the misleading advertising regulation does not appear to be unfolding its full potential.

Potentially, instead, a more regulated approach, inspired by the food sector, may help to curb disingenuous corporate practices conveyed via trade marks.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]

The Authors' Take - Fashion Piracy and Artificial Intelligence - Does the New Creative Environment Come with New Copyright Issues?

Fashion Piracy and Artificial Intelligence - Does the New Creative Environment Come with New Copyright Issues?

by Heidi Härkönen

The development of artificial intelligence (AI) creates challenges both for the copyright system and for the fashion industry. Nowadays and especially in the future, creative outputs by fashion designers are being challenged by AI-generated works. This is likely to create new copyright issues for an industry that is already notorious for its complex copyright environment. What is more, the approach that copyright law takes towards AI-generated fashion designs might have an effect on the sustainable development of the fashion industry. 

The key copyright challenge that the fashion industry faces is related to fashion designs passing the originality threshold and hence qualifying for protection. Because the functionality of a garment dictates its design usually at least to some extent, it is rather difficult for fashion designs to pass the originality threshold. In many cases, this reduces the legal risks of copying fashion designs. As long as the modern fashion industry has existed, it has struggled with copying, imitation and knock-offs. Hence, this paper has a particular focus on copyright infringement issues that the fashion industry is likely to face due to the increasing use of AI fashion designers. 

The lack of protection has helped especially fast fashion companies to knock off popular designs of others. Fast fashion – meaning cheap, mass-produced, low quality garments that imitate popular designs created by, e.g., high fashion houses or indie designers – has played a significant role in driving the fashion industry into an environmentally catastrophic situation. Currently, fashion is one of the most polluting industries in the world. The total greenhouse gas emissions from textile production are more than those of all international flights and maritime shipping combined (Ellen MacArthur Foundation, 2017). Hence, one could state that sustainability is probably the most significant challenge of today’s fashion industry and cannot be excluded when considering the future legal environment for the industry. Thus, the sustainability perspective is also taken into account in this article. 

In the current copyright environment, it seems that AI-generated fashion designs would be more vulnerable for copyists than human-created designs. The copyright system is primarily created in order to protect the creative endeavours of human creators. Since an AI fashion designer is not a human being, in most cases creations generated by it would fall into the public domain if there is not sufficient human input behind the creativity. This means that these AI-generated fashion designs would be free for everyone to copy, and fast fashion companies would have even less legal risks when it comes to their habit of knocking off popular designs by others. This creates a challenge that is especially related to sustainability: according to some previous legal research, copying is the engine of the fashion industry that keeps the industry going. Without copying, the fashion cycle would appear much slower (Raustiala & Sprigman, 2006). However, in today’s world, where way too many clothes are being produces, purchased and disposed, a faster fashion cycle is the last thing that the world needs. Instead, when considering how the copyright system should treat AI generated fashion designs, one should not come up with solutions that make fashion copying even easier. 

This paper concludes that, due to the aforementioned reasons, the copyright system should find a way to include AI-generated fashion designs in its protected subject matters. One option to do so would be that a computer user who initiates the creation of an AI-generated work should be recognized as the author and copyright owner of the resulting work (Denicola, 2016). Another possibility would be to develop copyright protection into a “dual system”, that would be divided to “romantic” protection of human-created original works, and “industrial” protection of investments and development of machine creation (as suggested by Alén-Savikko, Ballardini and Pihlajarinne, 2018). 

Furthermore, this article states that recognizing AI creativity in the eyes of copyright law would be a suitable solution for fashion houses that actually do create designs themselves – with or without the help of AI. It would not serve the business strategy of the kind of fashion operators that just rely on copying successful designs of others, which is what many fast fashion companies tend to do. If the copyright system would consider AI creativity worth protecting, the system could also provide incentives to develop and utilize AI designers, in addition to promoting creativity instead of imitation.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]