How Fashionable is IP?

The fashion industry is a fast paced, trendy, constantly changing, and sometimes confusing concept. Trends come and go without any notice and most of us feel like hamster spinning a stylish wheel.  

One of the biggest problems the fashion industry creates is in the world of intellectual property. The US, and in most other countries, there is very little protection for designers. This trend started a long time ago when the courts decided that fashion designs are too utilitarian to let a handful of people own.

This makes sense when you think about it. Can you imagine if someone owned a patent for skinny jeans? What would baristas and philosophy majors wear? Every time Levis wanted to sell a pair of 501s, they would have to get it licensed through the owner of the patent.

You can’t patent or copyright the physical product, but you can get a trademark for a logo. This is why lots of high-end designers plaster their logo on purses and shoes. If someone tries to make a knock off, they have to alter the logo to avoid trademark infringement.

At first glance it seems like designers are getting the short end of the stick, but some fashion experts argue it’s good for the industry. By not offering protection it propels designers to constantly be innovative.

After getting frustrated by the lack of IP laws, Stuart Weitzman, a well-known shoe designer, started designing shoes that engineered in such a way that only his blend of materials would work. If counterfeiters tried to make the shoe with cheaper materials the shoe would break.

Other fashionistas argue that IP laws should do more for the designers. The American Apparel and Footwear Association has been a huge proponent of IP protection.

The courts have been, and will most likely continue to be, hesitant to award IP rights to fashion designers. One reason for this is the novelty standard is hard to set.

Novelty standard is a complex issue that probably deserves at least 3 blogs, but we’ll briefly touch on it. This term refers to the originality of an item. If the item is patentable, it will be truly one of kind, and there will no other patents on record like this item.

In fashion the novelty standard is hard to meet because a designer would have to prove that their design has never been made before and therefore, they deserve to own rights.

The fashion industry’s current IP situation creates a very interesting debate about how ownership rights and the progression of creativity work together. This debate will continue to go on, and we’re happy to be part of the conversation.