Crafting Protection: Intellectual Property in the Fashion World

Fashion is defined as “the cultural construction of the embodied identity.” Fashion is form of art, principally driven by creation and innovation for ages, and has proven to be ever-growing sector. Nonetheless, fashion is one of the major sectors of global business, contributing to overall economy. Let’s understand about Intellectual Property in Fashion in this column:

Why IPR is important in Fashion industry: –

The fashion industry covers wide sphere of intellectual property rights within it, in connection with clothes, footwear, wearable accessories, jewellery etc. This includes copyright, trademark, patents licensing and geographical indications.

Plagiarism or copying any product in the fashion industry quite common, hence it is very important to protect one’s creation and Intellectual property rights plays a major significance. Securing the work by IP’s help an artisan in majorly two distinct ways:

1. Legal rights can stop anyone from misusing, selling, offering anyone to sale or benefiting off your textile or product without your permission; and
2. Legal rights can generate revenue from your designs by allowing you to enter into licensing agreements with third parties.

Thus, IP rights not only protects but “identifies the creators by their content”. By adapting a more adaptive approach of strategically managing IP rights distinctly from commercial operations a brand/artisan can make a mark in the industry for his/her name.

Luxury watchmakers such as Rolex, Audemars Piguet and Patek Philippe have a reputation for guarding their intellectual property closely, and their trademarks above all.

Obtaining IP’s and also marketing helps the individuals at great length. For example- KidSuper, the designer — whose bright, arty clothes earned him a place in the 2021 LVMH Prize Finals, and a guest designer post for Louis Vuitton in 2023 — curated a set at the Netflix. This is the latest example of his creative approach to building brand awareness.

Few landmark Cases:-

Thom Browne has come out ahead again in its long-running stripes dispute with Adidas. In May 2024, a Second Circuit panel upheld the trial court’s final judgment in Thom Browne’s favor, rejecting Adidas’ challenge to the outcome of the jury trial held in New York in January 2023.

At that trial, the jury concluded that Thom Browne’s use of four stripes on its clothing and shoes neither infringed nor diluted Adidas’ three-stripe trademark.

Hermès was in the news in December 2021, after artist Mason Rothschild went public with the cease-and-desist letter the fashion house had sent him, which accused him of infringing its registered trademarks through his “MetaBirkins” non-fungible tokens (“NFTs”).

Rothschild refused to back down, publicly invoking the First Amendment and his right to make art, and kept the NFTs on sale. Hermès then filed suit against him in Manhattan federal court on January 14, 2022, bringing claims including trademark infringement, trademark dilution and cybersquatting over its BIRKIN mark. It asked the court to stop him from selling the MetaBirkins and from making further use of its marks.

Louis Vuitton never marks down its prices. Today, a leather varsity jacket that originally appeared on the Autumn/Winter 2024 men’s runway in January and stole the show has turned into an NFT limited to 200 copies. Interestingly, the NFT can be purchased through a token-gated website, and the physical version drops in November or December.

Another landmark decision, this time on copyright protection for fashion designs, is Star Athletica v. Varsity Brands, decided by the U.S. Supreme Court on March 22, 2017. Varsity Brands sued Star Athletica for copyright infringement after Star Athletica started selling cheerleading uniforms that used chevrons, zigzags and stripes much like Varsity’s own designs. Star Athletica’s defense was that these elements were part of the uniform’s useful function and so could not be protected. The Court disagreed and ruled for Varsity Brands. It explained that copyright law does not protect industrial design as such, but that an artistic feature on a useful article can be protected if two things are true: it can be seen as a work of art apart from the article, and, imagined apart from the article’s practical role, it would qualify on its own for protection as a pictorial, graphic or sculptural work.

Another in another notable case is that of Sabyasachi, a well-known Indian designer, is aggrieved by the infringement of his registered designs for lehengas. Sabyasachi claimed that Mr. Ankit Keyal, proprietor of Asiana Couture & Ors (the defendant), uses a deceptively similar design to his registered design for ‘Rusheeda’ and ‘New Botanical Lehenga/P.C Lehenga.’(November 2022). Further, the Hon’ble Delhi High Court restrained the defendants from manufacturing, applying, selling, offering for sale, importing, advertising/publishing, directly or indirectly dealing in the afore mentioned lehengas or any garments/similar article which is obvious or fraudulent imitation of the already registered design.

Furthermore, the case of Crocs, Inc. v. International Trade Commission (February 24, 2010) has addressed the issue of design patents in the footwear sector. This case highlighted the significance of design patents in safeguarding the unique aesthetic features of footwear designs, demonstrating the broader implications of patent law in the fashion industry.

“The court found that the accused products infringed the design patent (‘789 patent) despite minor differences in detail. The case was remanded to the ITC for further determination of infringement and appropriate remedies.”

Moreover, recently, Rolex has filed a case for trademark infringement:

Rolex Watch U.S.A., Inc., Vs Hallmark Licensing LLC (04/23/2024)

Where the notice states that the crown mark by applicant (Hallmark Licensing LLC) and Rolex’s Crown Design trademark are nearly identical in appearance and commercial impression.  Final decision is pending here.

IPR in fashion is more than just about copyright, trademarks and patents of a designer or a brand but also the protection of culture by acknowledging geographical indications. One example of such case is collaboration between Swedish brand H&M, the Indian designer Sabyasachi Mukherjee, launched a collection named Wanderlust, including saris, infringing on the Geographical Indications (GIs) of certain Sanganer artisan communities. An open letter was issued signed by 15 Indian crafts associations and collectives, including Crafts Council of India, Crafts Council of Karnataka, and the All-India Artisans & Craftworkers Welfare Association and one of the questions raised in the letter was:

“Have the artisan communities that have the proprietary rights to these designs been credited or compensated in any way? In the case of some of the designs used in ‘Wanderlust’, the Sanganeri print artisans have a Geographical Indication registration.”

Here Sabyasachi Mukherjee stated that he works with local artisans and anyways give them there share so did not gave any part of this to sanganer artisans.

FASHION AND AI:

New technologies are making their mark in the fashion world from ventures like Dolce & Gabbana’s Collezione Genesi NFT, which offers unique fashion pieces as non-fungible tokens, to many platforms, for example- Metaverse Fashion Week 2023. It’s generally anticipated that generative artificial intelligence will significantly boost operating profits in the apparel, fashion, and luxury sectors, in the coming years.

AI can assist in designing, and generative AI can process raw text, images, and video—it can also help in written scripts to 3-D designs, and craft realistic virtual models for video campaigns, adds the report. London, Milan, New York, and Paris, and India Fashion Week, almost over, fashion houses are ready to retail. There are fashion pundits that predict that in the next three to five years, AI is predicted to add $150 billion, and up to $275 billion to the apparel, fashion, and luxury sector in profit, globally (McKinsey analysis 2023).

However, contrarily, almost 36 Pearl students showcase the benefits and pitfalls of AI in “AI is contagious”, at LFW X FDCI 2024 with an interesting display of ideas through pixelation, distortions and translucency. The various looks tell us how AI can be a boon and bane, the key is using it effectively and the show is thus, divided into three sections.

• The World Economic Forum report states 75% of Generation Z shoppers prefer sustainability, and brands like Stella McCartney tied up with Google Cloud, to add machine learning and cloud-based data processing.
• Burberry, a global and well-known luxury fashion brand, has used big data and AI in order to enrich its customer and sales relationships and as a tool to combat counterfeit products. The company uses big data by encouraging customers through loyalty and reward programs, and Burberry uses this data to offer tailored recommendations for both online and in-person shoppers and as a method to increase sales.
• Tommy Hilfiger’s partnership in January 2018 with the Fashion Institute of Technology (“FIT”) Infor Design and Tech Lab and IBM on a project called Reimagine Retail. The objective of this project was to show how AI technologies could give retailers an edge of speed in the design process and provide the next generation of retail and design leaders with new skills to use AI in the design process.
• Google Shopping aspires to reduce sizing issues by increasing inclusive models for virtual try-ons.
• Trendalytics, a New York-based company, uses AI to get insights from social media and Google and help sellers to know the popularity of fashion trends so that they know what will increase sales.

Hereby, the Pearl Academy is of the opposite opinion to it.

It is worthwhile to note that, with advancing technology also comes the fear of ownership. At present, there is no clear protection for fashion designs created using AI.

Conclusion

In the world of fashion, Intellectual Property rights play a not so simple yet crucial role in protecting the creativity and innovations of artisans. The IPR collectively aim to safeguard the intangible assets of individuals/industries imitated immediately after their public release.

The IP protection is versatile in this domain. The cornerstone of the fashion business is one of homage, reference, and inspiration which can provide legal protections in the fashion industry have significant implications for both established companies, emerging entrepreneurs, or even local artisans. Due to the same reasons India’s at least within its legal picture comprises of few landmark fashion law cases or judgements which might pave the path for our legal fraternity to explore the unexplored ambits of the field of fashion law. But since law has a nature of setting a future precedence so below are discussed few of the landmark judgements on both national and international level which have proved to be milestones within the shaping of fashion laws as well as conduct within the arena of fashion industry. The ideas/designs etc. must be under the ambit of the Intellectual property rights continuously to grow and move ahead in this domain.

Authors:

Rahul Bagga, Nisha Wadhwa and Neha Sharma of Aumirah