Fashion design
How can the fashion industry protect its designs?
Nuria Basi Moré
President, Armand Basi
Fabio Angelini
ECTA Law Committee
Susan Scafidi
Professor and Academic Director,
Fashion Law Institute at Fordham
Chair: Verena von Bomhard
Partner, Hogan Lovells
Fashion and Design rights
How an empirical/economic approach
may change the way the law sees them
Fabio Angelini
De Simone & Partners
"Fashion is a form of ugliness so intolerable
that we have to alter it every six months."
Oscar Wilde
Two scenarios
1) Someone says: “I have a registered /unregistered
design right and some else is copying me”. OR
Someone saying “that is accusing me of copying”.
2) Someone says: “I do not have a
registered/unregistered design right and someone
else is copying me”. OR Someone saying “that is
accusing me of copying”.
Please note I do not mention copyright, but one may add even that,
if applicable!
The real problem: is “it” (copying, recycling
or taking inspiration) bad?
• Let’s face it: however you want
to call “it”, it is a common
phenomenon, widely accepted.
• Large retailers survive by doing “it”.
• Who can deny that “fashion” is
a trend and there is very little
new under the sun.
• Most importantly does anyone
have empirical evidence that
“it” is bad?
Actually … “it” might not be that bad:
cf. The Piracy Paradox:
Innovation and IP in Fashion Design
(Kal Raustiala and Christopher Sprigman, Virginia Law Review (Vol. 92:1687) 2006
• The starting point is in the concept of “low-IP equilibrium”:
“the three core forms of IP law – copyright, trademark, and
patent – provide only very limited protection for fashion
designs, and yet this low level of legal protection is
politically stable.”
• The lack of design protection in fashion is not especially
harmful to fashion innovators, and hence they are not
incentivized to change it … this low-IP system may
paradoxically serve the industry’s interests better than a
high-IP system.
• Beware, the above conclusion is empirically proven valid
for both the US market and for the EU market which differs
for the kind of protection which is afforded to designs.
Anecdotal economic assessment of “its”
impact on the industry as a whole
• It helps those who spend less and thus performs an
economic and social function.
• Stricter IP protection might create monopolistic positions,
thus slowing the fashion cycles leading to less innovation
and higher prices due the lack of demand for new trends.
• Licensing costs resulting from stricter IP protection may
increase prices and decrease innovation.
• Compares to other industries (music/film), there is a less
negative impact from the low IP-equilibrium.
• Two reasons: “Induced obsolescence” and “Anchoring”.
A. Induced Obsolescence
Positional Goods
Fashion is not only tied to our personal taste. Fashion is now more
than ever a status-conferring good:
“Most forms of apparel above the commodity category… function as
what economists call “positional goods...These are goods whose
value is closely tied to the perception that they are valued by others.”
These goods are “positional goods” defined by economists as
“…bought because of what they say about the person who buys them.
They are a way for a person to establish or signal their status relative
to people who do not own them: fast cars … clothes from trendy
designers.”
Basically, the concept works in reverse to the famous quote…
Or, if you want a more
“serious” quote:
“Art produces ugly things
which frequently become
more beautiful with time.
Fashion, on the other hand,
produces beautiful things
which always become ugly
with time.”
Jean Cocteau
Anchoring
• If the fashion industry successfully wants to maintain a cycle
of induced obsolescence by introducing new styles each
season, it must somehow ensure that consumers
understand when the styles have changed.
• This happens in many ways, but “it” helps.
• The fashion industry itself does not always really know what
will become “fashionable” and a new trend.
Basically, when the market becomes suddenly saturated by
“it”, one latest fashion becomes a “trend”. Therefore “it” helps
to anchor the new season to a limited number of design
themes, which are more or less freely workable by all firms in
the industry within the low-IP equilibrium.
A regime of low IP protection, by permitting extensive and
free “inspiration”, enables emerging trends to develop and
diffuse rapidly, and, as a result of the positionality of fashion,
to die rapidly.
Induced obsolescence and anchoring are thus intertwined in
a process conducive to quick design turnover. This turnover
contributes to, though it does not by itself create, a market in
which consumers’ purchases are at a level well beyond that
necessary simply to clothe themselves. Together, induced
obsolescence and anchoring help explain why the fashion
industry’s low-IP regime has been politically stable.
The Seventies are back!!!!
Great. But, in my view, there
is a missing factor.
Fashion is cyclical, and
fashion itself recognizes that
most of the time the
inspiration is drawn by
looking back at … past
fashion.
The missing factor is the déjà-vu.
Perhaps because I have been
around for longer than I care to
admit, I find myself thinking time
and again that today’s fashion is
oh-so-similar to … what we used to
wear when I was younger.
Here is a clue: the greatest
consumers of fashion are the
youngest. Because they do not,
cannot remember.
So, who is the greatest designer?
Perhaps the one who notices first
when it’s time to … look back to the
past?
How does all of this fit from a legal perspective?
In my view, it should guide Courts in correctly interpreting
existing laws as well as IP owners in correctly deciding their
strategies.
Since I’ve been on both sides (sometimes I was a plaintiff’s
lawyer, some other times a defendant’s lawyer), I’m really
wary of militant (i.e. one-sided) IP law practice.
Do you want an example?
Let’s play a game: WHO IS THE “COPIER”?
Yves Saint Laurent or Chewy Vuiton
Wrong. Ask Louboutin …
Even those who pride themselves in being the leaders, not
the followers, sometimes are on the wrong side of the
equation.
In practice, the paradox of fashion means that we ought to
use IP rights, that is design rights, wisely, so as not to
suffocate the cycle of innovation and still guarantee adequate
ROI for those who create.
Therefore, designers should choose among the different
instruments that current laws provide keeping in mind what is
the end result…
Registered designs should never
be used for fledgling, seasonal
fashion.
Use them for fashion items that
might last longer, such as
handbags or perhaps shoes.
Beware though: since there is
nothing new under the sun, a skilful
lawyer will often be able to find
something in the past which may
deny the individual character.
Conversely, the Court should
decline to expand the scope of
protection of a design and treat
with suspicion any attempt to do
so.
Rely instead on unregistered
design rights to protect seasonal
fashion against real knock-offs, but
beware that anchoring needs the
existence of “inspired fashion” – if
no-one follows you, no trend will
ever be established.
You’re going to be a freak.
Conversely, Courts should
narrowly interpret what “copying”
means, and should not treat as
interchangeable the concept of no
different overall appearance with
that of copying. Meaning that those
who take inspiration and are
“followers” should be left free to do
so for the system to function.
In conclusion, it is my view that the interaction of IP rights (i.e.
designs) and fashion is an uneasy one, which nonetheless has
found its balance and it seems to work! Nonetheless, there is a
problem for a restricted number of fashion designers, who thrive by
the “allure” and profit so long as they are capable to restrict access
to their product to extremely few customers.
However, the nature and the cost of these products is often such
that it is not even possible to talk about competition. There is no
competition between an original and most times unique dress by a
celebrated designer in super exclusive boutiques and the “inspired”
dress sold at large department stores.
Perhaps a balance can be struck, maybe with the adoption of “low
cost” brands and /or with other models of distribution, but the
question remains: if it ain’t broken, why fix it?
Re-Fashioning Intellectual Property
Susan Scafidi
Professor and Academic Director,
Fashion Law Institute at Fordham
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attendees
Susan Scafidi
Professor and Academic Director,
Fashion Law Institute at Fordham
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