Fahion Law and IP: The Nexus

Fahion Law and IP: The Nexus

In a multi-cultural society like Nigeria, and in fact, given the effects of globalization and the spread of pop culture, fashion has amassed a considerable level of interest among individuals. Fashion is a form of art which is expressed in clothing, accessories, hairstyle, footwear and cosmetics. The high level of creativity and sophistication invested into these art forms reasonably necessitates some form of protection. A balance has to be made between fashion law, in its strict sense and Intellectual property of fashion. While fashion law may be as broad as encompassing tax, employment, consumer protection and safety issues, Intellectual property does not delve in that far. Does fashion law encapsulate IP or are they distinct? Quite recently, Annie Oti joined us at the Intellectual Property and Technology Law Club to discuss this.

Bio of Speaker

Annie Oti is a budding fashion lawyer and entrepreneur. She graduated from Obafemi Awolowo University in 2018. She is the founder and CEO of the Africa Fashion law, a platform solely dedicated in establishing a connection between fashion and law. She was once the creative director and CEO of House of Annie Oti, a business that thrived well under her administration. She also once volunteered at the prestigious event, Fashion Finest Africa, theatre of Fashion in 2018. Her vast experience and vivid interest in fashion law makes her a force to be reckoned with in fashion law.

Transcript of Webinar

Fashion law, also known as apparel law, is an emerging legal specialty that encompasses issues surrounding the life of a garment from conception to brand protection. Fashion law clients include designers, fashion houses, distributors, manufacturers, modeling agencies, retailers, and photographers.

Fashion lawyers perform a broad range of duties from drafting and negotiating contracts to addressing and litigating trademark, copyright, and other intellectual property issues. They’re in charge of forming and dissolving business entities and advising on branding development and protection.

The focus is on Fashion Law and Intellectual Property Law. The law in Nigeria is quite limited when it comes to protecting the creativity of designs in the Nigerian Fashion Industry plus a lot of creatives undermine the value of Intellectual property when it comes to their businesses.

Ignoring the fact that all businesses need to be strategic in order to guarantee longevity and sustainability, engaging legal representation will improve a business owner’s ability to understand different legal and business issues. Fashion is a global business and IP rights extend into the international trading system through various international treaties.

It is vital for fashion enterprises to obtain sound legal advice at an early stage in order to appropriately protect their creativity through IP rights, and be able to realize their commercial potential. The first hurdle in protecting fashion designs in Nigeria is not a simple task. In protecting a design, Intellectual property law comes in.

The areas of IP which caters for the creativity in the fashion industry are:

Copyright and Design Laws

Copyright protection is typically sought to protect the two-dimensional aspects of clothing design, while design law may protect the three-dimensional design and shape of the piece. However, under both Nigeria’s copyright and design laws, designers have encountered significant difficulty protecting their works.

Section 1(3) of Nigeria’s Copyright Act states: “An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.” As a result, protection under the Nigerian Copyright Act is not available where a designer intends to mass produce his or her garments.

Alternatively, Nigerian designers may seek protection by obtaining a design patent, which permits mass production, but is also difficult to secure. Designers who choose this route are often impeded by the lengthy processing time required to obtain the patent, the fees associated with the application and registration process, and the burden to prove that their designs are entirely “new,” varying significantly from each prior design in every country across the world. Each of these obstacles, particularly the last, may preclude protection under Nigeria’s Patents and Design Act: “Any anticipation of the design anywhere in the world, by any means whatsoever before the date of the application for registration of the relevant priority date destroys novelty.”

This high standard for proving novelty is often difficult to meet, especially for designers known for their particular aesthetic, as displayed in their prior works, and because fashion designs are often derivative of prior designs.

With regards to questions as to protecting fashion designs through copyright, it depends on what is meant by “fashion designs.” A fashion design could connote a number of things. It could mean sketches. It could mean a signature color, like Louboutin’s famous red-bottoms. It could mean the way fabric and other design elements are cut and pieced together. It could mean the graphic designs that appear on clothing. It could mean a design imprinted into fabric.

So if Copyright isn’t effective, what aspect of Intellectual Property Law can be effective in protecting fashion designs?

Trademark

A trademark can add great value whether for a small Scale fashion outlets or a global fashion house. They all value the brand equity they have built over the years through customer loyalty. These organisations develop st rong affinity with their customers through their brand names which are protected through registration as trademarks.

A trademark is a representative of the qualities (both tangible and intangible), values, and attributes that a designer infuses into its products. Trademarks are really most valuable for well-known, recognizable brands and can be an effective means of protecting creativity in the fashion industry.

Research has shown that despite the numerous benefits of trademarking and branding, over 80% of Small and Medium Scale Enterprises (SMEs) still fail to register their trademark. By failing to register their brands, these businesses are not only damaging their brands and reputation, they also put their business at great risk.

Trademarks can take many forms but are indicators to consumers that a certain product originates from a specific source. Brand names and slogans are typical trademarks.

There are a number of advantages associated with registering a trademark in respect of a fashion brand or business, including:

1. Registered trademarks allow you to easily differentiate your products from competitors, through use of the ™ or ® symbol. This is particularly beneficial in the highly competitive fashion industry, which is centred on brand names and product recognition.

2. A holder of a registered trademark has the right to sell their trademark or licence its use to others.

3. Registered trademarks are a solid legal basis on which to prevent others from imitating your brand. This is advisable, as imitators have the potential to damage reputation and diminish sales.

The application of Intellectual Property Law is very important in the fashion industry and in every business. If the intellectual property is not protected, the owners risk losing:

• Branding Establishing a strong brand is pivotal to business success. Protecting that brand (through trademark) is equally important. The name of your company and its logo are part of the branding that sets your business apart. Elements of your brand, from your company name to your logo can be subsumed and eroded. This can damage perceptions in the market of your quality, products, and reputation.

• Products Unique investments that have been made in developing designs may be compromised; only through proper protection through design laws etc. can one ensure that control and market the products developed.

•Ideas and thought leadership Protecting original contributions to the thinking around an industry can be an important step to establishing the company as a market leader.

As such, there is no doubt that, in a business, intellectual property is everywhere. Protecting your intellectual property rights is protecting your business, so you must claim your intellectual property rights before it’s too late.

Thank you all so much for the opportunity.

Q & A Session

Please can you explain the concept of patent and novelty?

In the context above, design patents are what we know as industrial designs and for an industrial design to be registered, a major feature is that it is new.

What are the deficiencies of the current legal framework for the protection of fashion designs with particular reference to Nigeria?

There are a lot of issues related to the legal frame work, first of, the Nigerian Fashion industry lacks an adequate structure, which a number of organisations are currently working on another issue is related to our laws, they need to be reviewed especially the Trademark Act.

The deficiencies are quite numerous and I won’t be able to highlight everything in the next 1hour

You know that thing that we do, taking pictures of designs and giving it to our tailors to sew. I want to know if it’s an infringement of an IP right

First off, we need to consider the features of trademark, industrial design laws. What makes a product/design protectable?

In 2019, Deola Saoge put out a notice before releasing her collection, protecting her designs. Once protected, taking it to a tailor to sew a copy of the design, which would most likely be impossible because of the unique nature of the product, would result to an infringement. So when a design has been put out in the public domain without protection, the protection available to such design will be limited

Are there law firms in Nigeria with strong Fashion law department?

There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues e there law firms in Nigeria with strong Fashion law department? There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues