A few years ago, I was invited to a very important event in Uruguay, where the dress code was “evening gowns”. Many people were attending from abroad and it was an international event in one of the most important resorts in our country.
I decided to buy designer clothes, because the event was worth it, paying a considerable sum, considerably higher than for a dress bought in the normal shops.
I was greatly astonished (and annoyed!), when two tables across from me, I saw a lady wearing the same design as mine, but in a different color and quality. This was nothing but an awkward moment, easily fixed by avoiding getting close to the woman, but happens all the time at higher levels where large-scale designs of clothing, footwear, hats, jewelry and wedding dresses or even designs of houses or interiors are copied.
Fashion law protects the creations, from the designer who made the initial sketch and made the wedding dress, and those who designed a wallet, bag or pair of shoes.
Anyone who uses the same or similar design, copying the brand or the appearance of the product, is violating the rights of the author and owner of the work, the owner of the brand and/or design.
Coco Chanel said; “To be irreplaceable one must be different”. That is fashion, that is design, that is the work: creativity and originality and because of this it is important to provide prompt and effective protection, to be able to act against those who try to appropriate the work of others.
Creations which are the product of “Fashion Law” can be protected in different ways and the appropriate protection will depend on each specific case.
PROTECTION BY TRADEMARK REGISTRATION
This is the most traditional and effective means of protection. We are referring to cases such as the RALPH LAUREN logo, the LACOSTE crocodile, the NIKE swoosh, which are registered as a brand to cover the line of products to be marketed.
A good example is the pocket design of LEVIS, which is registered in many countries for class 25. This has allowed the company to prevent many competitors using that design on the back pockets of jeans.
Another notable case is the three stripes of ADIDAS, a trademark registered in several countries, for classes 18 and 25, and that has allowed the company to initiate criminal proceedings, seizing products that use the design, as well as bringing civil actions against those who use for example four strips in a similar way to ADIDAS in their products.
The three stripes brand of ADIDAS as registered:
The sole of a shoe can also be a trademark, as in the case of CONVERSE, whose brand is registered in several countries.
Another example is the design on fabrics, which has allowed brands like LOUIS VUITTON to protect their monogram.
There are a large number of products that are not registered as trademarks, but constitute protected works under copyright law and, therefore, the copying or use of said product without authorization is prohibited.
This is the case with jewelry. Each piece is a work protected by copyright. While in some cases pieces that mimic logos or trademarks are detected, in many other cases protection comes via copyright law.
TRADE DRESS PROTECTION
There are many creations that have a distinctive appearance and can be entitled to protection under the concept of trade dress. However, although this figure is not the most recommended form of obtaining protection, as it needs prove of extensive use, and, generally, fashion products are seasonal, but it can be used for fashion icons.
We are referring to distinctive appearance of a product, the way or the manner in which they are seen or presented in the marketplace. In principle, it refers to the “packaging”.
Such is the case of the well-known Birkin of HERMES, or the CHANEL wallet or the Chanel No. 5 bottle.
It also applies to
products such as footwear: e.g. the case of ADIDAS “Stan Smith” or “Super Star” shoes, which are often imitated, without putting the brand ADIDAS or the three stripes that are registered.
PROTECTION BY INDUSTRIAL DESIGN
An ornamental design is protected by the industrial design regime if it is original, novel and not obvious.
For example, GUCCI has registered the following designs:
These allow the owner to act against those who use it illegally – on any product.
Over time legal tools have been developed that allow for the protection and defense of original creations. But it is very important to know what means are available and to be aware that registering a brand or a design is the first step to take care of one’s most valuable assets.
Doutora em Direito, Vice-presidente do Comitê Antipirataria da INTA
Sócia Sênior do Escritório Cervieri Monsuárez & Asociados (Uruguai)