Intellectual Property Law Update - Do IP Laws Adequately Protect Fashion?

Intellectual Property

"Fashion is a form of ugliness so intolerable that we have to alter it every six months" - Oscar Wilde

Whether of not you share Oscar Wilde's rather cynical view of fashion, more than 100 years on the fashion industry still generally works to six month cycles dictated by the main seasons.² What is "new and hot" quickly becomes "old and passé", stripped of its high price tag and consigned to the sale bin.

By its very definition fashion is about following "trends". Even the industry's innovators often present ranges that a remarkably similar. And if Vogue says that the maxi dress is "in" for next season, then those who want to stay in business had better produce and sell maxi dresses.

Fashion is also about the production of "ranges", where dozens of styles will be produced for each short season, never to be seen again after only a few months on sale. And many fashion companies produce styles within each range in relatively small quantities, as fashion is also about exclusivity, working on the principle that no-one wants to attend a party where someone else is wearing the same outfit.  

Unlike New Zealand, which has retained the right to issue proceedings for copyright infringement based on the copyright that exists in design drawing and patterns, in Australia, in the post 17 June 2004 world, the form and shape of garments and other fashion accessories must generally be protected under the Designs Act 2003 (Cth) (Designs Act). The question arises how a registration based in IP system can possibly protect the Australian players in such a fickle and “now” industry?

The simple answer is that there is a lot more fashion than merely shape and configuration, and design law is therefore only a relatively small part in the protection puzzle for the fashion industry. Indeed, the emphasis in fashion litigation appears to be shifting away from the form and shape, to the protection of distinctive features such as marks and graphics that endure for longer than on season and can be protected under trademark and copyright laws.³ 

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