Fashion Law

RESUMEN El mercado de la copia en el sector de la moda mueve en el mundo alrededor de 400.000 millones de dólares. Las creaciones o diseños de moda son copiados inmediatamente después de su lanzamiento al mercado. El objetivo de aquel que copia-integralmente el diseño o re-produciéndolo sin variaciones substanciales-sin autorización, es la rápida comercialización. De ahí que el análisis del régimen jurídico aplicable a las creaciones de moda en el derecho peruano sea necesario a fin de determinar su suficiencia o insuficiencia así como la necesidad de proponer una regulación específica que incentive al sector. Palabras Clave: creaciones, diseño de moda, protección jurídica, diseño comunitario, di-bujo y/o modelo. ABSTRACT The copy market in the fashion sector moves around the world about 400 billion dollars. Creations or fashion designs are copied immediately after they are released. The objective of the one that copies-integrally the design or reproducing it without substantial variations-without authorization, is the quick commercialization. Hence, the analysis of the legal regime applicable to fashion creations in Peruvian law is necessary in order to determine their sufficiency or insuffi-ciency and the need to propose specific regulations that encourage the sector.

La creatividad en la industria de la moda merece protección y uno de los vehículos más importantes son las marcas comerciales, pues es un activo intangible que permite distinguir productos y servicios. Es por ello que la tecnología es relevante para brindar una robusta protección y ello se realiza por un sistema de vigilancia adecuado.
De esta manera su busca evitar los conflictos en Internet o por el registro de otras marcas comerciales.

RESUMO Este artigo almeja ser uma contribuição a um novo ramo jurídico, o Fashion Law, que ainda é novidade em mui-tos lugares do mundo, inclusive no Brasil. A produção acadêmica sobre o tema até o momento, além de escassa, é majoritariamente focada em propriedade intelectual e sua proteção no âmbito da moda. Entretanto, existem outros objetos de estudo que merecem a atenção desse novo ramo jurídico. A partir do método dedutivo e da análise dos principais problemas identificados globalmente na indústria da moda, percebe-se que questões de cunho socioambiental, relativas a consumo, impactos ambientais, sustentabilidade e direitos humanos são mar-cantes no seguimento. Acrescentar esses temas de estudo no Fashion Law irão expandir seu campo de aplicação e discussão. Palavras-chave: Fashion Law. Socioambientalismo. Sustentabilidade. ABSTRACT This paper aims to contribute with a new legal branch, Fashion Law, that is still new in many places around the world, including in Brazil. The academic contribution so far, besides scarse, is mainly focus in intellectual property and its protection in the fashion industry. However, there are other subjects that deserve attention from this new legal field. Based on the deductive method and the analysis of the main problems identified globally in the fashion industry, it can be seen that socio-environmental issues related to consumption, environmental impacts, sustainability and human rights are significant to this area. Adding these study topics to Fashion Law will contribute to enlarge its field of application and discussion.

Fashion is a massive industry that thrives in a competitive global environment despite minimal legal protections for its creative design. While many people dismiss fashion as trivial and ephemeral, its economic importance and cultural influence are enormous. The fashion industry is a global phenomenon, with an international language understood by millions of people. Up to date, the fashion scene brings more and more fans willing to pay large sums of money to feel and to look good about their appearance and adornments. This increased interest has caused the fashion industry to face challenges that were not common in the past decades. Consequently, it came necessary to set the rules to make this a bigger and more effective business. As a result, Fashion law came as brand new legal specialty that involves several issues of intellectual property rights, particularly trademark law and copyright law though it can include patents and trade secrets. Patent and trade secrets become relevant when the fashion company has developed new manufacturing process or method as the fashion industry functions on the basis of collaboration, primarily between designers, manufacturers, merchandisers and retailers from all around the world to deliver to consumers' clothing, footwear and accessories.

This paper presents a brief study on position and color trademarks, through the analysis of the famous trademark infringement lawsuit proposed by Christian Louboutin against Yves Saint Laurent in order to protect his famous red soles.

O presente trabalho apresenta um breve estudo sobre as marcas de posição e cromáticas, fazendo-se um recorte na famosa ação de violação marcária proposta por Christian Louboutin em face da Yves Saint Laurent por conta de seus solados vermelhos.

VERGAÇA, Beatriz. Sinais Distintivos Não Tradicionais: O Caso Louboutin. Revista da ABPI – Associação Brasileira da Propriedade Intelectual, Rio de Janeiro, v. 148, p. 39-53, maio/junho, 2017.

Structured on two theoretical questions and one product, this research proposal has two main objectives: (i) to analyze the effects that legal protection 1 of traditional cultural expressions and cultural goods will have on the fashion and product design industry and (ii) to clarify what cultural appropriation is and provide a solution to reducing the frequency of this phenomenon through collaborative projects between artisans and designers.

Fashion is considered an element of "cultural identity". At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration to draw and depart from in an attempt at innovation. Influences were reciprocal, with the phenomenon of Orientalism going hand in hand with that of Occidentalism. Today's discussion focuses on the vindication by various ethnic groups of ways to protect their own folklore as expression of their own cultural identity. The questions that arise are manifold. This contribution aims at framing the problem in the nowadays fashion industry as well as investigating the various possibilities of protecting folklore while preserving cultural identity. The discussion will deal with recent studies that have analyzed the various aspects of cultural appropriation. Intellectual property will be taken into consideration as a way to protect folklore. Nevertheless, this article suggests that other options for achieving protection of cultural heritage and folklore emerge in the field of Private Governance and Corporate Social Responsibility that will offer new opportunities to tackle the problem of cultural appropriation in the fashion world.

The aim of this thesis is to compare the legal systems of the U.S. and the Netherlands with respect to the possibilities of IP rights protection for fashion designs and to identify any possible inadequacies in their legal systems. Therefore, the research question is as follows:
“Until what extent can (elements of) fashion designs be protected by the IP laws of the United States and the laws of the Netherlands and which legal regime could be considered favourable or in the best interest of fashion designers?”

The essay focuses on fashion and will cover distinct areas. It will first
address the birth of “made in Italy” in the field of fashion from an historical
point of view. It will then analyze the measures that the Italian government
has launched in recent years to protect “traditional Italian brands”, and the
various initiatives of certification and labeling in order to protect “made in
Italy” fashion products. It will then focus on the enormous problems related
to counterfeiting and, finally, on the new challenges such as the use of
Blockchain as a strategy for the protection of “made in Italy” products, and
how sustainability is, or should become, a part of the “made in Italy”
paradigm

The fashion industry is affected by an imbalance of power that goes beyond the outsourcing of part of the manufacture to developing countries. Said imbalance characterises the whole supply chain and hinders freedom of expression, freedom to conduct business and, hence, creativity and innovation. In order to understand fashion, IP lawyers and lawmakers need to take into account that the law is not the main device the regulating the relevant relationships. Indeed, fashion is a closed community, a family where complaining is rather frowned upon and where contracts do not reflect the actual relationships between the parties. In order to rebalance power, this article explores the possibility to treat good faith and inequality of bargaining power as unifying principles of contract law. However, in light of the evidence collected during a number of in-depth interviews with fashion stakeholders, it seems clear that social norms are the main source of regulation of relationships and, therefore, intervening at the level of the contracts may not be helpful. Competition law, in turn, may be of more help in rebalancing power; however, cases such as Coty v Parfümerie Akzente do not augur well. Moreover, competition law is useful when the relationship is over, but it is in all the stakeholders' interest to keep the relationship alive while fixing its imbalance. This study confirms recent findings that social norms do not only have a positive impact on fields with low IP-equilibrium and it sheds light on the broader consequences of the reliance on social norms and on its relationship to power imbalance. This work makes a twofold recommendation. First, IP lawyers should engage more with the unfamiliar field of social norms. Second, advocates of a reform of IP aimed at transforming the industry in an IP-intensive one should be mindful that the effort may prove useless, in light of the role of social norms, especially if
power is not distributed.
This research has been carried out with the generous support of the SLS Society of Legal Scholars.
Please cite as Guido Noto La Diega, ‘‘Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry’ (2018) Journal of Intellectual Property Law & Practice, jpy097, https://doi.org/10.1093/jiplp/jpy097

RESUMO
O presente artigo tem como objetivo discutir o paralelo entre a filosofia da moda e a teoria da Constituição, firmando uma base teórica para o estudo do direito da moda em uma perspectiva jusfilosófica e constitucional. Para tanto, emprega o método indutivo e elabora uma pesquisa qualitativa, exploratória e representativa, uma vez que parte da descrição de ambas áreas para construir uma teoria mais ampla. Tem suporte de referenciais bibliográficos da filosofia e do direito, além de empreender análise do texto constitucional. Compreende que a filosofia da moda está interligada ao conceito de identidade na pós-modernidade, o que é representa o consumismo enquanto fator de diferenciação e personalização. Entende que as mudanças da moda e sua aceitação pelo consumidor contemplam uma fenomenologia semelhante aquela da Constituição conforme a dialética de Lassale-Hesse. Ao final, conclui que a filosofia moda e o direito constitucional estão interligados pelos valores sociais e pluralistas que são atribuídos aos objetos de estudo de ambas as áreas.
Palavras-chave: Filosofia da Moda. Teoria da Constituição. Direito da Moda.

ABSTRACT
The following article aims to discuss the linkage between fashion philosophy and the constitutional theory, making an base theory for the fashion law study in a jusphilosophical and constitutional bias. Therefore, it employs the inductive method and develops a qualitative, exploratory and representative research, since it begins with an description of both fields in order to build a broad theory. It has support of philosophy and law bibliographical references and also utilizes an analyzes of the Constitution. It comprehends the fashion philosophy is connected to the post-modern concept of identity, which represent the consumerism as a factor of differentiation and personalization. It understands the fashion changes and it’s receptions by the consumer follows an similar phenomenology as the one previewed for the Constitution by Lassale-Hesse. At last, it concludes the fashion philosophy and the constitutional law are related based on the pluralistic social values attributed to both areas field of study.
Key-words: Fashion Philosophy. Constitutional Theory. Fashion Law.

Merchandising in the fashion industry. El merchandising, como contrato, es un tipo de licencia por el cual un titular de bienes intangibles (derechos de imagen, de marca, de derecho de autor, de diseños), autoriza a un fabricante a aplicar esos derechos a bienes y servicios no directamente relacionados con la actividad que originaron esos derechos. A modo de ejemplo, un fabricante de automotores deportivos y de lujo, como Ferrari, aprovecha el prestigio ganado y la preferencia del público por su marca, para autorizar a un fabricante de indumentaria o marroquinería a que aplique sus signos distintivos a camisas o bolsos de viaje.

Fashion is considered an element of “cultural identity”. At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration to draw and depart from in an attempt at innovation. Influences were reciprocal, with the phenomenon of Orientalism going hand in hand with that of Occidentalism. Today’s discussion focuses on the vindication by various ethnic groups of ways to protect their own folklore as expression of their own cultural identity. The questions that arise are manifold. This contribution aims at framing the problem in the nowadays fashion industry as well as investigating the various possibilities of protecting folklore while preserving cultural identity. The discussion will deal with recent studies that have analyzed the various aspects of cultural appropriation. Intellectual property will be taken into consideration as a way to protect folklo...

Trabajo publicado en la obra colectiva "Vinculación del derecho de la moda, regulación sanitaria y propiedad intelectual: aplicación práctica de casos cosméticos y perfumes" de ASIPI (Asociación Interamericana de Propiedad Intelectual), enero de 2018.
RESUMEN: Se describe el olfato como sentido químico. En este sentido se analiza el impacto en el hombre a nivel individual y social. Se ejemplifican diversos casos donde aparecen cuestiones jurídicas tanto desde la práctica empresarial como de las leyes.
ABSTRACT: The article describes the smell as a chemical sense. The author analyzes the impact in the human behavior as an individual and also as a social person. You can find examples where the legal issues appear. PALABRAS CLAVES: OLFATO-SENTIDO QUIMICO-ODOTIPO KEY WORDS: SMELL-CHEMICAL SENSE-ODOTYPE
Sumario: 1. El olfato: un sentido químico. 2. El hombre y su sensiblidad a los aromas. 3. El olor y las culturas. 4. Odotipos y derecho: no solo una cuestión de marcas. 5. Conclusiones. 6. Bibliografía.

The “fashion industry” can be thought of as one of the creative industries constituting the creative economy, since it features many important characteristics of traditional sectors of the cultural industries. These characteristics formed the core of the “culture and trade debate”, which – in legal terms – can be translated into an opposition between the trade agreements and the “laws of UNESCO”. The present chapter examines the fashion industry as a practical example of what cultural variety may mean in the international trade practice, with a view to paving the way for a new understanding of the relationship between culture and trade.

Fashion is considered an element of “cultural identity”. At the same time, it has always been a dynamic phenomenon in which different styles, designs and models converged, acting both as a source of attraction for designers as well as a source of inspiration to draw and depart from in an attempt at innovation. Influences were reciprocal, with the phenomenon of Orientalism going hand in hand with that of Occidentalism. Today’s discussion focuses on the vindication by various ethnic groups of ways to protect their own folklore as expression of their own cultural identity. The questions that arise are manifold. This contribution aims at framing the problem in the nowadays fashion industry as well as investigating the various possibilities of protecting folklore while preserving cultural identity. The discussion will deal with recent studies that have analyzed the various aspects of cultural appropriation. Intellectual property will be taken into consideration as a way to protect folklo...

Creative industries are industries focused on the creation and exploitation of intellectual property, including art, fashion design, and related creative services, such as advertisement and sales.  During a trip to Burkina Faso in West Africa, Keri Fosse was taught by an African woman how to wrap newborns with fabric in a manner that creates a strong bond and frees the mother’s hands for other tasks.  Burkina Faso has a craft culture and is known for its woven cotton and the textile art of Bogolan.  Bogolan is a technique original to and involves the tradition of dyeing threads with bright colors, washing it skillfully, using coated and shiny Bazin, and using indigo from Benin. After this trip, Fosse and her husband developed a shirt which copies the African lady’s, Lalabu’s, technique. They developed a product called Soothe Shirt; and created a business called Lalabu. Lalabu is also the name of the African woman that the Fosses met. They have been successful. The Fosses have stated that they got the idea from Lalabu, but redesigned it for production. The couple advertises that they “giving back” by giving 2% percent of each purchase to help female African entrepreneurs through microfinancing.
By offering micro-loans, the Fosses claim that when the African women repay the loan, they reinvest the money into the micro loan fund. This study advocates that practices like the Fosses’ are not representative of socially responsible entrepreneurial endeavors. Instead, these are instances of intellectual property piracy. The following sections are a discussion of the relevant legal foundation, theoretical foundation, and existing best practices. With respect to best practices, what is missing is shared ownership. Although the open appropriation of fashion designs may he commonplace in America, the appropriation of cultural artisan crafts created in other countries by Americans beg special attention.

Fashion is a three trillion dollar a year industry with a 100% participation rate. So how do companies like Louis Vuitton, Ralph Lauren, Gucci, and Christian Louboutin promote their brands globally while still protecting their designs? 

To what extent are creators, from individual fashion designers to million-dollar brands, protected under intellectual property law? How do you balance protecting IP with fostering innovation? Lawyers, law professors, and industry experts discuss the role of intellectual property in the fashion industry, explaining three recent cases that continue to spark debate on design protection in the United States.

Resumo: A indústria da moda, mercado de grande importância para a economia brasileira, envolve a circulação de mercadorias decorrentes de um esforço intelectual e criativo peculiar. A moda surge da inovação, da distinção de estilos que acabam por formar tendências que definem épocas. Por essa razão, é de extrema importância que sejam desenvolvidos mecanismos para a proteção das criações de moda pelo direito de autor, de modo a garantir a inovação. Este trabalho procurará trabalhar com as possibilidades do direito brasileiro no âmbito do direito de autor para a garantia desse tipo de proteção, combatendo o ponto de vista segundo o qual a pirataria pode ser benéfica ao mercado. Para tanto, será analisada a experiência do Direito Comparado, tanto no sistema de Copyright quanto no de Droit d'Auteur e suas convergências com a evolução da jurisprudência e doutrina brasileiras no sentido da proteção das criações de moda pelos direitos autorais. Abstract: The fashion industry is a market of huge importance for the Brazilian economy and involves the circulation of goods produced in a peculiar intellecutal and creative effort. Fashion emerges from innovation, from the distinction of styles which produce trends and define times. For this reason, it is utterly important that some mechanisms be developed for the protection of fashion creations by copyright, looking forward to the protection of innovation. This paper intends to work with the possibilities of Brazilian Law for the warrant of this kind of protection, arguing against the view that defends piracy may be good to the market. This paper is going to analyze the comparative law standards in the Copyright system and also in the Droit d'auteur, looking foi points of convergence with the evolution of Brazilian case law and Law theory in the sense of the protection of fashion by copyright law.

ABSTRACT: Fashion articles are largely copied by knockoffs and make alike industries,
leading fashion originals industry to lose money. The fashion industry is constantly adapting
itself to imitation and piracy. Copy affects high fashion industries. Fast fashion companies
that make knockoffs, even before the original designs are sold, are most benefited by the
practice, often hurting small highly qualified designers that don’t have ways to react. Fashion
goods may be protected by Copyright, Models and Designs, Trademarks and Other
Distinctive Signs, Patents and Utility Models, Rules Against Unfair Competition, E-commerce,
Domain, Names, Advertising Law, and by the sui generis right of Producer of Data Bases.
There may e overlapping of protections. Nevertheless, piracy rules in what concerns fashion.
3D Printing entered the fashion world late, as compared to other areas, because the
technology and materials were not suitable for the fashion world, but once it entered the
fashion industry it is changing the way this industry functions. Our aim in this work is to see
what how 3D printing has the power to transform the fashion industry and raise a few
questions, especially regarding intellectual property piracy, that can be much stronger than
what already happens.

Kατά κανόνα, η ευθύνη από προσβολή πνευματικών δικαιωμάτων και διναοητικής ιδιοκτησίας γενικότερα αναζητείται από τους δικαιούχους στα πρόσωπα που βρίσκονται στην αρχή της αλυσίδας του εμπορίου "πειρατικών" παραποιημένων προϊόντων (παραγωγοί, κατασκευαστές, διανομείς). Στην παρούσα εισήγηση μελετάται κατά πόσο υφίσταται αυτοτελής ευθύνη του τελικού χρήστη/καταναλωτή αντικειμένων μόδας. Για την ανάλυση του ζητήματος, επιλέγεται περίπτωση μελέτης (case study) κατά την οποία ο χρήστης/καταναλωτής φοράει δημόσια μία μπλούζα στην οποία αποτυπώνεται μία φωτογραφία, για την οποία ο παραγωγός του ενδύματος δεν έχει λάβει άδεια από το φωτογράφο.