Written by: Darliss Gordon
It is well known that the fashion industry is one of the productive engines of the world’s economies, generating billions of dollars annually. This industry involves different stakeholders that participate in the value chain: from textile producers and designers, logistics agents, transportation and storage, sales agents in physical stores or through the digital channel, to other agents that help in its diffusion: models, photographers, influencers, sponsors of fashion shows, having in the center those products for personal use such as clothing, footwear, jewelry, perfumes and accessories in general.
Let us imagine then the different legal situations that may arise in this complex universe of the fashion world and as a consequence, the different legal disciplines that must respond to these problems; as a focal point we will review some aspects related to intellectual and industrial property; however, it is valid to clarify that this matter has special relevance for commercial law, competition law, consumer protection, law of obligations and contracts, tax law, administrative law, procedural law, among others.
Fashion law is a term that was just coined in Anglo-Saxon law in the late nineties and is an anglicism that refers to the different legal aspects that affect the fashion industry. In our Central American region and even in many Latin American jurisdictions, it is difficult to find structured Fashion Law or Fashion Law as an autonomous legal discipline with specific laws on the subject, but the protection of this sector is achieved through the interpretation and application of existing legal regulations and its various branches.
In the absence of specific and updated rules in some cases and the contradictions that may arise in the absence of a uniform international regime, the main problem faced by fashion companies is the effective protection of all their creations, facing as a primary challenge, precisely the originality of the same. The massive dissemination of fashion designs and creations in the digital era facilitates the commission of infringements, counterfeiting, plagiarism and unauthorized uses. As a consequence, regardless of the fact that each case merits a specific legal assessment, it is clear that the fashion sector, being part of an industry characterized by luxury, is highly exposed to counterfeiting.
The first major recommendation to ensure protection against unauthorized copying or exploitation of creations in this industry is precisely to seek protection by making use of the legal mechanisms available. The registration of trademarks and other distinctive signs constitutes one of the main means of protection, which can be carried out, by way of illustration: by registering labels, external design elements such as a logo, registration of olfactory marks to protect perfumes, advertising signs, etc.
Some creations may have a degree of originality that may achieve protection from the perspective of industrial design, which basically consists of that particular aspect of a product resulting from its characteristics of, among others, shape, line, configuration, color, material or ornamentation, and which includes all industrial designs and models. An industrial design will be protected if it is new and will not be considered as such if it only presents differences with respect to a previous design that would be insufficient to give the product an overall impression different from that of the previous design. Finally, when the design in question presents in itself the necessary degree of creativity and originality, it may be protected as an artistic work according to the rules governing intellectual property or copyright.
In short, given the relevance of this industry, the need to promote the study of this discipline based on the doctrine, jurisprudence and comparative law of countries with more complex legal structures in this area is becoming increasingly necessary and valid, as is the need to promote the exchange of knowledge and information among all legal advisors and agents involved. The commitment to strengthen the jurisdictional structures in our countries is a task of equal relevance in order to ensure adequate legal protection against the problems that this discipline involves, taking into account that intangible assets are essential in the fashion business, which, as mentioned in previous paragraphs, is highly vulnerable to imitation or copying.
In conclusion, promoting the importance of the protection of fashion creations, advising on the requirements of creativity and originality to the entrepreneurs of this industry and/or owners, discouraging the purchase of imitations, should be a day-to-day work.