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Intellectual Property in fashion industry

The fashion industry has a huge economic and social importance moving billions of dollars and creating millions of jobs, rivaling in importance with the industry of books, music and movies.

Although a person needs a new pair of shoes when there is worn out or a coat when the weather gets colder, for the majority of people buying clothes is not limited to this situation.

People also get new clothes to be fashionable, to express themselves, to express what they think and feel. Namely everyone needs at some level to use the products generated by this industry. This ends up causing a frequent and constant cycle of change and especially consumption.

In view of that situation companies are searching for expert advice in this area in order to protect their labor relations, contracts, assets and especially their creations, represented, for example, by handbags, jewelry and clothing is increasing.

Despite the existence of the copy as an essential element of fashion, through remixes, for example, the copyist of the fashion creations when exceeds the barrier of trends, and gets too close to the original works can be – and usually is – sued.

To make this to be possible some precautions are necessary.

Initially, it should be observed that once considered as works and fulfilling all the requirements fashion creations automatically have copyright protection, since Brazil as a signatory to the Berne Convention adopts the principle of formality-free protection, in Article 5, item 2 of the Convention and are therefore the registration is not necessary to obtain the protection. However is important to point out that the registration is possible with the competent office in order to become a stronger evidence in case of litigation.

In Brazil, with respect to Industrial Property, there are several protections offered by both the Law No. 9279/96 and the Federal Constitution. Patents, industrial designs and trademarks can and should be applied wherever possible in each case.

The patents and utility models have been used, for example, in particular protection technologies in the field of textiles and footwear.

The trademarks in turn are already well known by the companies by their power to differentiate their products / services power to make a company stand out in the market and also for the power to protect its customers against similar brands. Yet more obvious than these characteristics is that is also possible to use trademarks for the protection of apparel models by means of three-dimensional marks and even to obtain protection for prints and fabric patterns by means of figurative marks.

Therefore trademarks are clearly a great mean of protection since the registration may be renewed indefinitely in time.

Finally we have the industrial designs, another form widely used in the protection of fashion creations, such as handbags and jewelry. Under Article 95 of Law 9279/96 industrial design is “the ornamental plastic form of an object or the ornamental set of lines and colors that can be applied to a product, a new and original visual result in its external configuration and that may serve as a kind of industrial manufacturing”.

Besides, as a big plus point the granting of the Industrial Design takes place in a much shorter period then patents and trademarks in Brazil since the registration – to be requested in the Brazilian Patent Trademark Office – does not depend on prior examination to be awarded. With the possibility of reaching the length of protection of 25 years.

It is well known that fashion is cyclical, that trends comes and goes, but there are unique pieces that resist the passage of time becoming high-value assets.

Therefore, in such cases is appropriate to proactively safeguard their rights through the protection tools offered by Intellectual Property.

Carmen Sánchez-Puelles