There are few things as ephemeral as fashion. Collections are seasonal so they last just for the season: Autumn-Winter and Spring-Summer. In the case of counterfeiters, however, time has never been a restriction. Six months are sufficient to counterfeit, manufacture and commercialize goods.
Some attribute those imitations to the fact that the fashion industry reflects trends. Thus, it wouldn’t be surprising if different catwalks staged similar designs. It is also commonly believed that fashion stands for inspiration and its effects should not be deemed as imitations but as mutual “influences”. Finally, pragmatists acknowledge imitation as a resource to make available an haute couture design for mass consumption. Yet, the truth is that imitation is a fact.
In this sense, should fashion designs be registered as intellectual property? Protection arises upon creation. Consequently, registration requirements seem not to be necessary in order to enjoy protection. However, the deposit provides for presumption in case proof of authorship is to be established.
The Argentine law that sets forth Copyright protection is Law No 11,723, passed in 1933. Even though said law was subsequently amended and it has been supplemented with several regulatory decrees, the law in itself has been sufficiently suitable, adapting to changes and withstanding the test of time.
The bottom line is to emphasize that copyright protects formal creations, i.e. protection does not apply for ideas, processes, methods and concepts per se. For instance, concepts such as the miniskirt —a short skirt extending up to the mid-thigh— or the bikini — a two-piece bathing suit—, would not have been admitted for registration unless registration takes the form of material expression, videlicet, “a short skirt, bell-shaped, made of a black and white horizontally striped silk….” Accordingly, for valid protection, the elements contained in the work, including pictures and drawings attached to the description, must be fully characterized.
The registration process must be fulfilled before the National Directorate for Copyright, which has decentralized the reception of works deposits into different “collaborating agencies”, namely, Boards and Organizations pertaining to each industry. Application forms requirements and fees vary based on whether the work has not been released or otherwise, it has been made available, i.e., if it is a published work, in which case, fees will be slightly higher. Anyway, both proceedings are quite affordable and straightforward.
We must say, however, that imitations in the fashion industry are not confined to designs. The reproduction of both trademarks and logos in the form of fraudulent imitations is a major scourge for the industry. The social and economic outlook boosting the demand of products alike —in general terms, usually cheaper than the original versions—, high profit margins for the infringers and the lack of sustained programs to combat piracy contribute to turning this issue into a real problem, overstepping the described scenario.
Patents and utility models also belong to the fashion industry in the form of new technologies and textile innovation. We set find examples of these forms in past innovations, namely, the spandex (Lycra), the nylon, and fireproof or waterproof cloth. Another set of good examples in this regard are studded-pocket jeans and the zipper.
Moreover, we can find up-to-date examples with smart clothing and the famous wearables. These innovations included technological devices not only available for leisure use and comfort but also to enhance sports performance, health care-related services and preventive medicine.
Industrial designs, in turn, can protect other fashion creations, such as bags and jewelry.
As we dive into the fashion-property rights registration relation, we can realized about its depth. All in all, protection can reach everything, from the technology used in the textile industry to cut, sew, embroider and dye up to architectonic designs used by the largest clothing chains and their franchises. Forwhen we talk about creativity and innovation, copying is fashionable.