JULY 2014
Legal Focus
49
Fashion Law J
o has a particular specialism in the field of Intellectual Property within the retail and fashion sector and regularly advises on the
existence,
exploitation and enforcement of Intellectual Property rights (IP).
There are many legal challenges which currently face the fashion industry, perhaps the most prominent of all being the protection of IP rights.
Due to the established custom of showing two collections a year, often in addition to a “mid-season” collection, designers have little time to stop and think about protecting and enforcing their IP rights. Inevitably during the non-stop creative process any thoughts of IP protection can fall by the way side.
However, it is important that designers take the time to protect and enforce their IP rights. A brand name or logo which is strong and attracts public following is a valuable asset; Louis Vuitton is the highest- ranking fashion luxury brand with a brand value of $24.8 million and H&M is the highest-ranking high street brand with a brand value of $18.1 million.
Given the above figures, it is important for designers to expend as much time and energy in protecting their IP rights as they do in creating them. Due to the availability of new technology which makes it easier for designs to be copied and sold even before the models leave the runway, it is
creation,
This month we take a look at the world of fashion law, by speaking to Jo Gregory, a Partner at London Law firm Joelson Wilson LLP, and the head of the Retail and Fashion Team. Jo and her team regularly assist retail and fashion businesses with all of their legal issues.
now more important than ever to protect a brand image and value.
An important part of protecting a brand’s value is through effective trade mark protection which can protect a designer’s own name, a logo, a distinctive pattern or a model name which may be used to identify the style of design.
In the UK, any sign which can be represented graphically and which is capable of distinguishing the goods or services of one undertaking from another is capable of trade mark protection, subject to certain grounds of refusal such as marks which are purely descriptive or contrary to public policy.
Due to the global and international nature of the fashion industry a brand often requires trade mark protection across several jurisdictions. This can present further problems as even once the registration of a trade mark is dealt with, the right must be enforced and any unauthorised use of the mark should be monitored, identified and stopped. This becomes more difficult and requires tighter management when working across several different jurisdictions. Designers should also be mindful of the process of “hijacking trade marks”, which involves opportunistic individuals and organisations registering the names of up and coming fashion brands as trade marks in different jurisdictions, such as China.
The fashion industry also faces legal challenges in the manufacturing and
distribution process. It is common for designers and brands to use overseas manufacturers and distributors in order to minimise costs. Given this, it is vitally important that a water tight manufacturing and/or distribution agreement is put in place not only to protect intellectual property rights in foreign markets but also to maintain the brand’s value.
As an example, the quality of goods can significantly increase or diminish a brand image or value and therefore appropriate protection should be built into a manufacturing agreement. This is especially the case where goods are produced overseas in mass quantities and at cheaper prices. This type of manufacturing can also raise certain ethical issues surrounding the working environment, which must be considered and managed.
A distribution agreement on the other hand deals with how goods are marketed, including whether a distributor will have exclusive rights to sell the goods within a defined territory. This can raise competition law issues which can affect the price and general conditions that can be agreed between a designer and distributor.
Although there are a multitude of challenges facing the fashion industry it is possible for a fashion business to manage its ‘portfolio of rights’ and effectively exploit its brand internationally once it has the knowledge to do so with the benefit of some good legal advice. LM
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