Rethinking The
Copyright and Design
Patent Protection Of
FASHION
DESIGNS In China
Cheng Mao： 3030010255, PhD Student, HKU
Primary Supervisor： Sun Haochen;
Co-Supervisor: Alice Lee
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What Is “Zeline”?
Left: Celine; Right: Zara
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Joey Yung Wearing “Shanzhai” Viktor & Rolf
“Designed” by Local Designer For Musical
Award
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TABLE OF CONTENT
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INTRODUCTION
LITERATURE REVIEW
RESEARCH GAPS
RESEARCH QUESTIONS
ARGUMENTS
METHODLOGIES
EXPECTED RESULTS
CONTRIBUTIONS
OUTLINE
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CHINA: HEAVEN FOR FAKE GOODS
-- “SHANZHAI” SHOES IN CHINA FASHION WEEK
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CHINA: RISING AWARENESS OF COPYRIGHT
OF FASHION AND PROMOTION OF ORIGINAL
DESIGNS
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INTRODUCTION: COPYRIGHT PROTECTION
OF FASHION DESIGNS IN CHINA
Copyrightable
Works
Literary
works
Often step into subjective
judgment on artistic merit
Denial of copyright for
commercial, industrial dress
Artistic Works
Works of Fine
Arts
(Proposed)
Works of
Applied Art
Extension to
Works of
Applied Art
Only “Artistic
Dress”?
Only
“Artistic”
Dress
How to draw the line?
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INTRODUCTION: PATENT PROTECTION OF
FASHION DESIGNS IN CHINA
Invention
Patent
Utility
Model
Design
Patent
• Protect Functionality
• New, Inventive,
Utilitarian
• Protect Functionality
• New, Inventive and
Utilitarian
•Does not protect
functionality
•New and Rich in an
aesthetic appeal
•Costly, lengthy and
with high threshold
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INTRODUCTION: TRADEMARK AND UNFAIR
COMPETITION PROTECTION OF FASHION
DESIGNS IN CHINA
Trademark
3D Trademark
• Secondary Meaning
• Non-Functional—
Technically/
Commercially
Unfair
Competition
Unique name, package,
or decoration
• Secondary Meaning
• Not product design
per se?
• Non-Functional—
Technically/
Commercially
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LITERATURE REVIEW: LAW AND RESEARCH
IN THE US
• US: Copyright (exclusion of useful articles)； Design Patent;
Proposed Sui Generis Copyright Law for fashion designs
• Some (e.g. Rustiala & Springman) observe the characteristics
in the fashion industry (trends, cycles, etc.) and prefer to
explore trademark & extra-legal means to encourage
creations and competition
• Others (e.g.Hemphill and Suk ) argue the balance can be
achieved by tailoring the scope of protection, standard of
infringements, limitations and exceptions, term of protection,
etc. .
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LITERATURE REVIEW: LAW AND RESEARCH
IN EU
• EU: Community Design law and Community Unregistered
Design Law; Copyright
• Academics (e.g. Suthersanen) highlight the marketability of
design and justify cumulative protection from the integration
of art, industry and commerce
• Critics: Justice v. Efficiency
• EU & US: fail to reveal more profound historical, cultural
reasons ( e.g. the interplay between the development of the
fashion industry and the origin of design patent/ design law) ,
and lack sufficient empirical evidence
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LITERATURE REVIEW: ART, FUNCTION AND
COPYRIGHT LAW
Duchamp’s “Fountain”
Star War Helmet
Non- propositional Art v.
Artistic Purpose (UK)
Bauhaus School
Belt Buckle
Bauhaus v. Separability (US)
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LITERATURE REVIEW: ART/ FUNCTION
TESTS IN COPYRIGHT LAW
• The existing tests have not followed the changing
ideas of art and design.
• Some scholars discussed alternative approaches
(institutional, historical approaches) to the standard
of artistic works in copyright law.
• More investigations are needed in the meaning of
fashion designs, its relationship with art/ design
(especially in post-modern context) and the legal
definition of artistic works.
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LITERATURE REVIEW: CURRENT RESEARCH
ON COPYRIGHT AND DESIGN PROTECTION
OF FASHION DESIGNS IN CHINA
• Practical but lacks comprehensive legal analysis– merely
case collection and surveys conducted by fashion school
members
• Isolated —copyright and design patent researchers in
China rarely look into the special features in the fashion
industry.
• Technical – many design patent specialists in China only
deal with technical problems.
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RESEARCH GAPS
EU
US
China
Focused
Jurisdiction
YES
YES
NO
Re-evaluation of
the commercial
aspects of designs
YES
YES
NO
Integrated
Research of Art/
Fashion/ Law/
BARELY
NOT SUFFICIENT
NO
Monographs
NO
NO
NO
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RESEARCH QUESTIONS
If no, how they
should be
amended
Do we need
sui generis
design law?
Whether current
copyright and design
patent are sufficient for
fashion designs in China
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ARGUMENTS
• Fashion designs as design-intensive and consumer
conscious industry reflect the dynamics of art,
technology, and commerce. The traditional dichotomic
division of art and industry is no longer suitable for the
development in designs , especially for fashion designs.
• In China, in the long-term, design should be separated
from the patent regime, and unregistered design
protection should be available. In the short- term,
copyright law should provide realistic protection for
fashion designs.
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ARGUMENTS– LAYERS OF PROTECTION
Trademark/ Unfair
Competition
• Non-Functionality
• Covering 3D design &
Package, get-up
Copyright
• Works of applied art
• 25 years
Design
Unregistered
Design
• Based on current design
patent
• Renewable term
• Incorporate some
copyright features
• Short term
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METHODOLOGIES
• Comparative Research: thoroughly compare legal texts,
cases and papers from China, EU (UK, France Germany) and
US, etc. to provide specific recommendations in China.
• Integrated Research: review of historical, cultural, social
background, and justify copyright and design protection for
fashion designs.
• Empirical Case Studies: collect database search results,
reports, policy papers and publications by courts and IP
offices in selected cities to evaluate the importance, impacts
and efficiency of protection of fashion designs in China.
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MATERIALS AND RESOURCES
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Comparative Legal Research
Statutory law and Cases in US, EU, and China;
Academics’ works (e.g. Reichman; Dinwoodie; Suthersanen; Hu Chonghan)
Legislative proposal hearings (EC Green Paper Hearings ; US IDPA Hearings,
etc.); WIPO documents ;AIPPI (Questionnaires and National Reports
in2012) ; ALAI (Questionnaires and National Reports in 2001)
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• Integrated Research:
• Art and Design History; Fashion Theories
• Empirical Research:
• Policy papers; Reports from consult groups (BCG; Li & Fung. etc); Database
search…
• WIPO & NCAC reports, Publications by courts and copyright/ design patent
offices …
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EXPECTED RESULTS
• Recommend appropriate copyright protection
for artistic fashion designs in China:
• Propose the directions of sui generis design
protection in China
• Review related protection of fashion designs
in trademark law and unfair competition law
in China.
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CONTRIBUTIONS
• Fill the gap in the research on copyright and design
protection of fashion designs in China by:
• Providing the first monograph on this topic with
substantive, comprehensive and systematical study.
• Having a deep insight into the dynamics of this issue
with the historical, social, cultural context and empirical
data analysis
• Proposing cohesive, realistic multi-layers of
protection for fashion designs in China. Also referential
for other countries.
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OUTLINE
• Chapter 1: Introduction
• Chapter 2: Justifying IP Protection for Fashion Designs
• Chapter 3: Copyright & Design Protection of Fashion Designs
in US & EU
• Chapter 4: Copyright Protection of Fashion Designs in China
• Chapter 5: Design Patent, Trademark and Unfair Competition
Protection of Fashion Designs in China
• Chapter 6: Recommendations for Copyright and Design
Protection of Fashion Designs in China
• Chapter 7: Conclusions
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THANK YOU !
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