"Fashion is a form of ugliness so intolerable that we have to alter it every six months."

Oscar Wilde.

Fashion and Design rights. How an empirical/economical approach may change the way Law sees them

Two scenarios1) Someone says: “I have a registered/unregistered design right and some else is copying me”. OR“Someone saying “that”, is accusing me of copying”.

2) Someone says: “I do not have any registered/unregistered design right and someone else is copying me”. OR“Someone saying “that”, is accusing me of copying”.

Please note I do not mention copyright, but one may add even that, if applicable!

The real problem: is “it” (copying, recycling or taking inspiration) bad?

● Let's face it: however you want to call “it” it is a common phenomen, widely accepted

● Large retailers survive by doing “it”

● Who can deny that “fashion” is a trend and there is little very new under the world?

● Most importantly does anyone have enpirical evidence that “it” is “bad”?

Actually... it might not be “that” bad: cf. THE PIRACY PARADOX: INNOVATION AND

IP IN FASHION DESIGN(Kal Raus tiala and Chris topher S prigman, Virginia Law Review [Vol. 92:1687) 2006

● The starting point is in the concept of “low-IP equilibrium”: ”the 3 core forms of IP law—copyright, trademark, and patent—, provide only very limited protection for fashion designs, and yet this low level of legal protection is politically stable”

● The lack of design protection in fashion is not especially harmful to fashion innovators, and hence they are not incentivized to change it.... this low-IP system may paradoxically serve the industry’s interests better than a high-IP system.

● Beware, the above conclusion is empirically proven valid for both the US market and for the EU market which differs for the kind of protection which is afforded to designs

● It helps even to those who may spend less and thus have economic and social function

● A stricter IP protection might create monopolistic positons, thus slowing the fashion cycles leading to less innovation and higher prices due the lack of demand for new trend

● Licensing costs resulting from stricter IP protection may increase prices and decrease innovation

● Vis-a-vis other industries (music/film) there is a less negative impact from the low IP-equilibrium

● 2 reasons: “Induced obsolescence” and “Anchoring”

Anectodical economical assessment of “it“ on the industry (as a whole)

A. Induced Obsolescence- Positional Goods

Fashion is not only tied to our personal taste. Fashion is now more than ever a status-conferring good: “Most forms of apparel above the commodity category ....., function as what economists call “positional goods..These are goods whose value is closely tied to the perception that they are valued by others”. These goods are “positional goods” defined by the Economist as “....Positional goods are bought because of what they say about the person who buys them. They are a way for a person to establish or signal their status relative to people who do not own them: fast cars... clothes from trendy designers”. Basically, the concept work in reverse to the famous quote.... .

Or if you want a more “serious” quote” “Art produces ugly things which frequently become more beautiful with time.Fashion, on the other hand, produces beautiful things which always become ugly with time”Jean Cocteau

Or, they start ugly and stay ugly!

● If the fashion industry wants to successfully maintain a cycle of induced obsolescence by introducing one or more new styles each season, it must somehow ensure that consumers understand when the styles have changed.

● This happens in many ways, but “it” helps.● The fashion industry itself does not always really knows

what will become “fashionable” and a new trend.

Basically, when the market becomes suddenly saturated by “it”, one latest fashion becomes a “trend” Therefore 'it' “helps to anchor the new season to a limited number of design themes, which are more or less freely workable by all firms in the industry within the low-IP equilibrium”.

Anchoring

A regime of low IP protection, by permitting extensive and free “inspiration”, enables emerging trends to develop and diffuse rapidly, and, as a result of the positionality of fashion, to die rapidly.Induced obsolescence and anchoring are thus intertwined in a process of quick design turnover. This turnover contributes to, though it does not by itself create, a market in which consumers' purchases are at a level well beyond that necessary simply to clothe themselves.Together, induced obsolescence and anchoring help explain why the fashion industry’s low-IP regime has been politically stable.

THE SEVENTY’S ARE BACK!!!!!

Great. But, in my view, there is a missing factor.

Fashion is cyclical, and fashion itself recognizes that most of times the inspiration is drawn by looking back at … past fashion.

The missing factor is the déjà vu.

Perhaps because I’m packing more years that I’d like, I find myself musing over and over that today’s fashion is oh so similar to … when I was younger.There is the clue: the greatest consumers of fashion are the youngest. Because they do not, cannot rememeber.So, who is the great designer? Perhaps the one who sees first when it's time to... look back in time?

How does all of this fits from a legal perspective?In my view, it should guide Courts in correctly interpreting existing laws.And should guide IP owners to correctly decide their strategies.Since I’ve been on both sides, sometimes I was a plaintiff’s lawyer, some other times a defendant’s lawyer, I’m really wary of militant (i.e. one-sided) IP law practice. Do you want an example?Let’s play a game:WHO IS THE “COPIER”?

YVES SAINT LAURENT or CHEWY VUITON?

WRONG. ASK TO LOUBOUTIN….

Even those who pride themselves of being the leaders, not the followers, sometimes are on the wrong side of the equation.

In practice, the paradox of fashion means that we ought use IP and namely design rights wisely, so as not to suffocate the cycle of innovation and still guarantee adequate ROI for those who create.

Therefore, designers should choose among the different instruments that current laws provide keeping in mind what is the end result....

Registered designs should never be used for fledging, seasonal fashion. Use them for fashion items that might be last longer, such as handbags or perhaps shoes.Beware though: since there is nothing new under the sun, a skillful lawyer will often be able to find something in the past which may deny the individual character.Conversely, Court should decline to expand the scope of protection of a design and look with suspect at attempts to do so.

Rely instead on unregistered design rights to protect seasonal fashion against real knock-off, but beware that the anchoring needs the existence of “inspired fashion” if no one follows you, no trend will ever establish. You’re going to be a freak. Conversely, Courts should narrowly interpret what “copying” means, and should not exchange the concept of not different overall apperance with that of copying. Meaning that those who take inspiration and are “followers, should be left free to do so for the system to function.

In conclusion, it is my view that the interaction of IP rights (namely designs) and fashion is an uneasy one, which nonetheless has found its balance and it seems to work! Nonetheless there is a problem for restricted number of fashion designers, who thrive by the “allure” and profit so long as they are capable to restrict access to their protect to extremely few customer. However, the nature and the cost of these products is often such that it is not even possible to talk about competition. There is no competition between an original and most times unique dress by a celebrated designer in superexclusive boutiques and the “inspired” dress sold at large department stores. Perhaps, a balance can be striken, maybe with the adoption of “low cost” brands and/or with other models of distribution, but the question remains: if ain't broken, why fix it?