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Should the fashion industry invest in their Intellectual Property?

The best thing a designer can ever do is to act proactively in the current business environment where the primary source of competitive advantage for all businesses, including those in the fashion industry, is innovation and original creative expressions. Your label is a valuable marketing tool, the one that customers identify with when they make a purchase. The public will identify a certain quality and image with goods and services being your trademark.

Intellectual property is an essential tool to protect your ideas and the work you generate as a designer in the clothing and fashion industry. Intellectual property (IP) refers to the creations of the mind, inventions, literary and artistic works, symbols, names and images used in commerce.

IP is divided into two categories: industrial property, which involves patents for inventions, trademarks, industrial designs, trade secrets and geographical designs and copyright, which covers literary works.

“In order to be irreplaceable, one has to always be different.”- COCO CHANEL

Designs

At the heart of fashion are fresh new designs; registration helps the owner to prevent all others from exploiting their originality. Registering a design should help deter others from copying it and to fight unscrupulous competitors who do so. Your brand is important for business success and income. You need to know your rights and be prepared to act if they are infringed. No one doubts the tremendous value of intellectual capital to the creation and marketing of products in the fashion industry, be it high fashion or ready-to-wear. Yet many small and medium-sized enterprises pay little attention, if any, to protecting such intellectual assets.

Branding and Trademarks

The fashion industry is an intellectual property intensive industry continually generating and commercially exploiting creative ideas and innovations. Trademarks are used to distinguish products and brands from one another, and can play a pivotal role in protecting the designer’s reputation. Words, phrases, symbols and designs convey a great deal to the consumer regarding the level of quality and goodwill of a brand.

When it comes to trademarks, big fashion houses value their brand equity. Most develop a bond with their customers through their brand names and fiercely protect these through registration of trademarks and protection of associated artwork by copyright law. Trademarks are just as important for a small or start-up company in the fashion industry.

Examples of how IP can be infringed upon include:

  • Counterfeiting: a copy bearing the trademark of the copied designer. Usually of inferior quality to the original.
  • Knock offs: producing garments that copy the design and style of another product but without using the trademark.
  • Passing off: using an unregistered mark, characteristic or get up of another company in order to trade on the goodwill of another company.

An example of trademark infringement suit would be the current IP dispute between Forever 21 and Gucci. The dispute is centred around allegations by Gucci that Forever 21 is infringing on its signature stripes, which is likely to cause confusion among consumers.

Patents

Patents may not immediately spring to mind when considering the fashion industry. Yet technical innovation can equally put a fashion business ahead of the competition. A portfolio of patents may, for example, reflect technical superiority in inventing new fabrics that do not crease, or are softer, or more weather-resistant. Such a patent portfolio could attract business partners or investors.

Moreover, design protection is not always a major financial burden, at least to begin with. Many fashion houses strive to create such classic design pieces. When they succeed, if they have not obtained the appropriate IP protection in time, imitators will be able to “free ride” on their creative work.

Designers should also keep in mind that infringement of the IP of others can be damaging and costly. However, protecting IP also enables designers to safely access new markets through licensing, franchising and entering joint ventures or other contractual arrangements with other companies which establish ownership of rights that can demonstrate commercial return useful in convincing investors venture capitalists or banks to the commercial value of a company.

By offering IP protection through copyright, design rights and patents, innovation is encouraged as exclusive rights to commercially exploit their ideas and inventions. The creator is thereby incentivised to continue innovating.
In a nutshell, fashion houses are driven by their creativity and by the intellectual capital invested in them. Investing in your intellectual property protects you from potential threats and losses that can occur in the future, so…invest, invest, invest.

Muvingi and Mugadza
Intellectual property department

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