Fashion Law and Trademarks: Protecting Brand Identity in a Fast-Fashion World.

Introduction

In the constantly changing sphere of fashion, the currency is creativity, which by the law is insured. Fashion law is a dynamic field of law being recent, which regulates the complex relationships of the fashion industry, with trademark law becoming the central part. The example of trademarks; brand names, logos and unique patterns and trade dress are the potent legal instruments that not only identify products in an oversaturated marketplace but already represent a brand, reputation and goodwill.

The threat of copying and faking is something that cannot be eliminated in the aesthetic and fast-changing industry. The protection of trademarks, thus, proves irreplaceable in the maintenance of exclusivity and avoiding misleading consumers. The Trade Marks Act, 1999 in India is a much-awaited guideline in the registration and enforcement of trademark rights, making it possible to allow designers and fashion houses to claim ownership of their work.

Furthermore, digitization of fashion business and fast-fashion trend increased the number of trademark disputes, and caused the emergence of complicated issues of infringement, dilution or unfair competition. Since brands are global, the trademark law is more vital in navigating the cross-border issues.

Finally, the area of fashion and trademark law can be seen as the fragile relationship between both integrity and security, whereby legal privileges provide that not only is innovation equally or more glorified but is also owned.

Abstract

The fashion industry, which is a world market of over US 2 trillion, is one of the sectors that depend on brand recognition and trademark protection.

Luxury brands put money into their unique trade dress (e.g. red sole used by Christian Loeboutin) as an indicator of quality, which is highly imitated by the fast fashion brands. This paper discusses the way in which the trademark law protects brand identity in these pressures. It discusses the conceptual grounds of fashion trademarks, the contradictions between the fast-fashion imitation and luxury branding, and the international legal system (TRIPS, Paris Convention, WIPO) which forms the basis of the international trademark norms. By contrasting the law of the UK, EU, US and India and canvassing landmark cases (e.g. Louboutin v YSL, L’Oreal v Bellure, Louis Vuitton v Haute Diggity Dog) the paper will assess the issues of enforcement in the digital era such as counterfeiting, dilution of trademarks and online infringement. Lastly, it points out policy deficiencies and suggests changes (e.g. more robust design protections, platform regulation, technological anti-counterfeiting tools) to enhance the safeguarding of fashion trademarks on an international basis.

Trademark Protection in the Fashion Industry Conceptual Framework.

In fashion, trademarks can be used as identifiers of the source and quality. In international law, all signs that can discriminate goods may be secured as a trademark.

• This wide coverage encompasses other unconventional marks like colors, shapes, and get up of products. For example, the U.S. The Second Circuit made it very clear that the Louboutin red lacquered outsole – when applied as a contrasting color mark – has obtained a secondary meaning and is protectable.
• On the same note, the U.S. allows the trade dress protection of an overall design of a garment or package in case it is a distinctive and non-functional container. In comparison, the EU and UK have 3D shape marks and color marks as long as they do not have purely technical (aesthetic) purposes. The Court in Louboutin v Van Haren (CJEU 2018) affirmed that a color on the sole of a shoe was not a shape in itself and thus the red sole of a shoe manufactured by Louboutin could be considered a registrable color mark.

Uniqueness is one of the main criteria: a mark should be either intuitively unique, or it should have gained a secondary meaning. In many cases, fashion brands develop uniqueness with the help of vigorous advertising and continuous wearing. Upon becoming distinctive, the mark gives the owner the privilege to enjoin the use of the identical or confusingly similar marks of similar goods. This minimum standard is codified in TRIPS Article 16(1) which provides the owners with the exclusive right against the occurrence of the same or similarly similar signs against the same or similar goods in instances where such usage would lead to the likelihood of confusion.

• In addition to confusion, numerous jurisdictions guard famous marks against dilution. As an example, anti-dilution relief to well-known marks in the U.S. is granted when a mark is not confusing, though blurring (dilution) and tarnishment (damage to reputation) is observed. Europe also prohibits use, which causes unfair advantage or harm to a mark or reputation, and this claim is supported in L’Oreal v Bellure.
• The Trade Marks Act in India also does not permit registration and use that unfairly advantages or harms the distinctive character or reputation of a famous mark.
• Generally, trademark safeguard in fashion depends on the high natural or developed differentiation of brand units and most regimes go the extra mile in granting relief in situations where well-known marks are used even on unrelated products.

Fast Fashion vs Luxury Branding – Legal Tensions.

Fast-fashion retailers operate on the success of turning designs at the runway and luxury into cheaply produced fashion. Legally, these mass-market copies usually do not have to be subject to copyright and design protection of clothes (not many jurisdictions have well-developed design rights in relation to clothes).

 Therefore, the process of copying is not necessarily wrong, except in cases of imitating a trademark or a label. Luxury brands are in a dilemma, whether or not the trademark (labels, logos) of the brand is used by the fast-fashion sellers, the copy can evade the infringement easily. Nevertheless, luxury brands still can be abused due to the free-riding on the reputation of producers of cheap imitations.

This tension is depicted in the L’Oreal v Bellure saga. Smell-alike perfumes made by Bellure of their own brand were a copy of L’Oreal smell-alikes and they openly made a comparison to the L’Oreal trademarks. The ECJ found this to be an unfair advantage to the marks of L’Oreal without consumer confusion.

Conversely, there are those who believe that copying is the driver of fashion. According to one commentator, low-end imitations may have a positive effect on consumer recognition and even consumer desire after the original designs, which demonstrated the fact that Coco Chanel was right that imitation is the biggest form of flattery.

In fact, lower-priced versions can result in increased publicity of a brand. However, the luxury houses argue that the market has been flooded with fakes of low quality by fast fashion, which harms exclusivity and brand image. The European fashion industry has been calling on more formidable global IP protection of designs.

However, economic theorists warn that excessive IP may lead to the death of the competitive dissemination of fashion innovation. The most significant legal dilemma is therefore between innovation and imitation: trademark law provides protection against copying to the brand owners and quashes the growth of the brand where it harms the brand’s goodwill, but does not guarantee against all types of copying designs.

Rules of International Law (TRIPS, Paris, WIPO standards)

International IP agreements establish the framework of protection of trademarks in fashion. The TRIPS Agreement of WTO directs the member states to grant the same trademarks rights as those of the Paris Convention. TRIPS Article 16(1) provides that it is only allowed to have exclusive rights against use of the same or similar marks on the same or similar goods in case confusion is probable.

TRIPS as well provides cover of known marks across goods (Art. 16(2)) and requires members to safeguard registered marks no less than seven years (Art. 18). It does not specifically demand a dilution remedy, although such are adopted in numerous countries nationally.

Paris Convention (1883/1967) is another constitution that supplements TRIPS with the national treatment and priority rights: a trademark owner who registers a trademark in one member state is entitled to the priority rights in any other. The Paris Article 6bis commits the members to safeguard well-known marks against some local use even when they are not registered in that country. Whereas TRIPS and Paris established principles in general, WIPO offers administrative guidelines and structures. To illustrate, the Madrid System supports multi-jurisdictional registration (significant to global fashion brands that want to enjoy homogeneous protection). The WIPO also directs policymakers in its publications: one of them says that fashion is increasingly globalized and IP, particularly trademarks, is a core asset of the fashion business.

Comparison Analysis UK, EU, US and India.

United Kingdom. The law of the United Kingdom (the Trade Marks Act of 1994, revised) is mostly the reflection of the EU rules. Similar to the EU, it does not allow the unfair advantage of a reputation of a mark (TMA 1994, s.10(3) +). Passing off (unregistered trademark rights) is also recognized in the UK courts to ensure goodwill and get-up of brand. Markedly, the UK Supreme Court confirmed in Louboutin v Van Haren (2018) that the color mark (red sole) can be used provided that it is not just a shape.

On Brexit, the UK has its own Trade Mark Rules (also like its former EU law). The UK is more likely to adopt the European model of dilution (damage to repute) instead of implementing the distinct dilution cause as in the U.S. law.

European Union

 The national (and EUTM) trademark rights are given by the EUTM Regulation in EU law. It safeguards reputation marks against any use which is unfairly taking advantage of or prejudicial to their distinctive character (Art 9(1)(c)). Therefore, well known brands have wide leverage. However, in practice the CJEU has applied this literally: in addition to Bellure v L’Oreal on tarnishment.

The cases of Adidas v Fitnessworld (2005) and Louboutin v Van Haren demonstrate that the Court is ready to protect well-established marks against similar ones. The EU permits 3D and color marks too provided that they are not functional. Trade dress (get-up) is not explicitly protected under other than marks but the Unregistered Design Right (community law) does provide some protection to new designs. As a whole, the EU regime put pressure on reputation and repute of marks, rather than determining that there is consumer confusion in the case of non-similar goods.

United States

 The trademark law in the U.S. (Lanham Act) is a use based system, which allows various types of marks such as trade dress and non-conventional marks. It is worth noting that the U.S. provides statutory anti-dilution remedy (15 U.S.C. SS1125(c)) to famous marks. Well-known icons (such as LV or Chanel) can prevent uses which obscure differentiation even in the absence of confusion. Another exception of fair-use based on parody is also known by U.S. law. As one such case, in Louis Vuitton Malletier S.A. v Haute Diggity Dog, LLC, LV brought an infringement action against a dog-toy manufacturer whose product (the “Chewy Vuiton” perfume toy) resembled the LV monogram. The Fourth Circuit affirmed the parody, with no probability of confusion and considering it a fair use.

Likewise in the Louboutin v YSL (2d Cir) case, the court permitted the red sole mark (with boundaries) of Louboutin.

The American law is more generous in the range of marks that can be protected, but also more protective of the freedom of expression and parody than other jurisdictions. Yet enforcement may be burdensome: imitation is rife, and U.S. must fall back on the customs seizure and federal law enforcement (see below).

India

 A first-to-use component, trans-border reputation rules, is afforded by the Trade Marks Act 1999 (as amended) of India such that well-known foreign brands may claim any rights without local use. Section 2(1)(zg) and Section 11 constitute the definition of well-known marks of similar and dissimilar goods. The explicit protection of anti-dilution is offered by India under the Section 29(4): any use of similar mark on dissimilar goods under the pretext of unfair advantage or prejudicial to a well-known mark constitutes infringement.

The Indian courts have taken a directive in the defense of well-known trademarks. As an example, the court in Industria de Diseno Textil SA v Oriental Cuisines (Delhi HC, 2015) stayed a restaurant with the name Zara Tapas although Zara is a brand of clothing apparel – the court held that the mark ZARA had acquired trans-border fame and was entitled to protection on unrelated goods.

In general, the regime in India can be discussed as a hybrid of the EU and the U.S. strategies: India adopts the idea of dilution/tarnishment (through statute) and does not disallow passing-off-like protection of reputation. An objection is that it is unpredictable whether well-known status and enforcement are going to be enforced in India, but major brands also have habitual success in activities.

In these forums, dilution claims demand varying degrees of prominence standings: in the U.S. only dilution claims demand fame (15 U.S.C. SS1125(c)), in the EU, dilution claims demand marks to be known by a significant portion of the people in the area. The strategy used by India resembles passing-off: there is no requirement that the mark be recognized had the mark been diluted formally. A comparative analysis observes that the owner of a famous mark in the US has a cause of action against dilution. The mark under EU does not need to be a famous mark, but rather one that is recognizable by a substantial number of the population… In India, the doctrine of dilution has long been fairly familiar” by passing-off claims.

 Trade dress and non-traditional marks also vary: in the U.S., it can be the entire appearance of a fashion design, which the country considers trade dress (where inherently distinctive), whilst in the EU/UK, it can only be called a shape, and trademark is applied to labels and logos.

Landmark Case Laws

Christian Louboutin S.A. v Yves Saint Laurent Am. (2d cir. 2012).

The Second Circuit, in this case, discussed a single color red high heeled shoe outsole which was claimed to be a trademark by Louboutin. The lower court had ruled that color per se cannot be used as a mark; that was overruled by the court of appeal. The Second Circuit ruled that the red lacquered sole of Louboutin had actually attained secondary meaning and therefore could be used as a mark in certain situations. Notably, the court narrowed the mark: the red sole mark could be registered only in case the red sole stands in opposition with the other parts of the shoe.

 Therefore a red shoe (sole and body red, as in the Trib- Two shoe of YSL) was not infringed (monochrome). The decision of the court included the following: The trademark Louboutin has developed a limited secondary meaning of a distinctive mark representing the Louboutin brand, and it restricted the trademark in terms of the application so that red outsole is in contrast to rest of the shoe.

This case illustrates the ability of the American courts to strike the balance between trademark scopes and functionality: it is considered that one color mark (which is not common but allowed in Qualitex) is present, but it is narrowed to avoid excessive competition blockage. The case of Louboutin (on appeal), established the principle of color being a trademark in fashion provided that consumers consider and perceive it as brand related.

L’Oreal SA v Bellure NV (C-487/07, ECJ 2009).

This was a case in Europe where Bellure had sold out scents that smelled like L’Oreal. Bellure promoted its products by mentioning the well-known trademarks of L’Oreal (e.g. using such words as Renoir and names with the suffix like). The courts of the UK had already determined that there was no deception because the materials used by Bellure stated clearly what the goods were and that there was at best a risk of dilution or tarnishment of reputation. The case went to the ECJ. Even in the absence of any confusion or deception, the Court said that the comparative advertising and the use of the marks by Bellure unfairly exploited the distinctive character or repute of the marks, therefore, infringed under the EU law (which is the same as Art. 5(2)-(3) of the old Trademark Directive, now Art. 9(1)(c) EUTMR). Concisely, the business model of Bellure to publicize the famous marks in order to sell copies was not valid. In one commentary, the ECJ has dealt with smell-a-like perfumes, which aped L’Oreal, and has said that the use of L’Oreal well-known marks in comparative advertisements was unfairly exploiting the reputation of L’Oreal.

 This case has the doctrinal importance of expanding protection: it prevented the trafficking of look-alikes that rides on reputation even without confusing the consumers. The opponents claim that this creates de facto monopoly, but the proponents defend such a policy by saying that it safeguards the image of the luxury brands. The Bellure case, therefore, demonstrates the conflict between free comparative advertising and the right of trademark owners – in the case of fashion, the brand reputation had been prioritized.

Haute Diggity dog, LLC vs. Louis Vuitton Malletier S.A. (4 th Circuit 2007).

 Louis Vuitton also filed suit against Haute Diggity Dog (a pet toy manufacturer) over its plush “Chewy Vuiton” toy purses, which parodied the monogram of the brand. The district court declared that the toys were undoubtedly parodies and awarded judgment to Haute Diggity Dog on all counts (there was no likelihood of confusion and blurring effect was barred by parody). The Fourth Circuit affirmed. It accepted that no sane consumer could be confused as to whether the Chewy Vuiton dog toys were real LV products. Although this application can be said to have diluted the mark of LV, the court did not overrule the parody exception: the judge pointed to the same conclusion of the district court, that the toys were successful parodies, and that they were unlikely to be confused.

 The Fourth Circuit clearly “long-distance[s] the reasoning of the district court on the dilution problem” but nevertheless concluded the same way – that Haute Diggity Dog prevails.

That is, the legal result was that the U.S. law protects satire of a mark, weighing between trademark rights and the freedom of expression. It is frequently referred to as an example of the U.S. strategy: a well-known fashion label is not insulted by a good-faith parody, and the attempt of LV to prohibit the Chewy Vuiton toys did not succeed.

These historic cases exemplify major teachings. The case of Louboutin v YSL made it clear that non-functional aesthetic elements (a red sole) may be a trademark based on color when they have secondary meaning.

L’Oreal v Bellure ruled that the EU trademark law safeguards famous marks against non-confusing exploitative uses of the mark based on its repute.

The case of LV v Haute Diggity Dog demonstrates the awareness of parody as a defense by the U.S, which barred dilution claims in situations where the mark is obviously turned into a joke.

Together, they drive home the point that even though fashion houses are allowed to and indeed do invoke trademark law in creative ways (color marks, generalized “anti-dilution” claims, etc.), they also are subject to doctrinal constraints (contrast requirements, parody defenses) as courts push to create a balance between interests.

Difficulties in Implementing (Counterfeiting, Dilution, Online Platforms, Influencer Marketing)

Despite the existence of good laws in the books, it is challenging to use the fashion trademarks. Counterfeiting. Knock-off goods are a menace to luxury brands across the globe. The counterfeiters take advantage of international supply chains and online shopping. According to the law enforcement officials in the U.S., more than 90 percent of all seizures of counterfeits are conducted in small-size mail packages that are shipped through e-commerce platforms.

This is indicative of how the sources of fake luxury goods are distributed through fast-fashion and flea-market vendors (and large online marketplaces). Bulk shipments can be intercepted through border enforcement (customs raids), however, it is virtually impossible to police millions of small online shipments. Brands are forced to employ the services of a private investigator and use takedown programs (e.g. Customs Trade Partnership) – an expensive, time-consuming and never-ending process.

The minimal magnitude of counterfeiting (clothing, bags, accessories) implies that a great number of offenders merely include enforcement expenses into their business.

Dilution and Tarnishment of Trademark

Secrecy of the value of a brand in regard to non-confusing use is not only lawful but also impractical. To demonstrate dilution in court (particularly of blurring), it frequently takes a lot of evidence of reputation and loss of distinctiveness to quantify. In the digital age, brand identity can be eroded away in a thousand different minor applications (memes, comments, ingredient links). As an illustration, influencers on social media tend to use costumes without permission. Though unintentional Marketing of brands in the posts might not mislead consumers, Lexology commentators caution that influencer marketing would threaten the uniqueness of well known trademarks.

An unlicensed viral hashtag or celebrity endorsement can sleepwalk through a brand aura or it can be linked to other contexts. The problem with brands is that it is difficult to police all the influencers and small online sellers; the law on when such use is actionable (trademark use in commerce) remains a developing concept.

Online Marketplaces

The Internet has brought with itself tools and dangers. On the one hand, e-commerce sites have established brand protection programs. An example is the Brand Registry used by Amazon where the trademark holder can efficiently remove infringing listings. Conversely, registration and even abuse have been encouraged with the introduction of these programs. One of the studies notes that the Amazon policy has altered the way businesses conducted their business: small sellers were even forced to apply even descriptive marks to be eligible to be a part of the enforcement.

 The outcome was the explosion in the applications to be registered at the USPTO and a new way bad actors can swindle the actual brand owners by registering the marks of others under their name. So what started as an anti-abuse tactic turned out to be a new front in trademark abuse. On top of that, international marketplaces (eBay, Taobao, Etsy, etc.) remain the haven of counterfeit or unauthorized products, and jurisdictions are split on intermediate liability. Online advertisement networks and key-word advertising present other concerns: bidding on brand names may confuse the consumer and water down rights.

None, no, no! Social Media and Influencer Marketing. Brand-building of the modern era depends on social media, but it also can lead to improper use of the brand that is not authorized. Influencers commonly produce an affiliate or even lifestyle-style content that is a mix of advertisement and editorial work. Owners of trademarks fear the so-called brand ambush – products that are marketed without the company owner’s permission as recommended. Though also it has some rules (FTC regulations demand disclosure), trademark law seldom tells such subtleties. Moreover, there is the issue of user-generated content (images of fans in the brand, or even memes with logos), which raises some questions regarding control. Brands are now suing celebrity and influencer usage: e.g. Louis Vuitton sued one of the social media stars over promotion of an unlicensed collection. On the whole, brand image policing is an exceptionally difficult task due to the high proliferation rates of brand images on the Internet. Summing up, border vigilance in the digital era requires enforcement, but the legal processes (border seizure, court order) are slow and responsive. According to the commentators of WIPO, combating online counterfeits is an expensive process, and even new technologies like blockchain are regarded as possible tools that help rights holders.

 Part of Digital Marketplaces and E-commerce.

Retail has been revolutionized through the e-commerce sites. Large marketplaces have become intermediaries in selling volumes of fashion and each intermediary has its own guidelines on trademark rights enforcement. As it was mentioned, the Brand Registry of Amazon became a breakthrough: brands are offered an opportunity to use the algorithmic tools (rights-holder dashboards, VIN codes, and so on) to monitor and delete the infringing items. The security measures however differ greatly on the sites. Lots of smaller platforms do not provide much protection to IP, and the brands have to depend on takedown notices in accordance with the DMCA or similar services. This fragmentation implies that one site can be pulled and the counterfeit handbag can thrive on the other.

Markets also have an effect on law. The U.S. trademark landscape has arguably been changed by the dominance of Amazon. Research has established that online enforcement should be registered and that this resulted in an influx of trademark registration and even fraudulent registration as explained above.

 The same demands are observed in China, where the Alibaba ecosystems are filled with imitations; the Chinese law enforcers have been successful (recent raids) but the number of listings is tremendous.

In addition to retail locations, there are new challenges with social shopping applications and online resale shops (e.g. Poshmark, Depop). Online marketplaces are also trying alternative authentication (e.g. consigned item verification), but there is no international standard. The role of payment providers (Stripe, PayPal) is not irrelevant: some of them will freeze accounts discovered to sell counterfeits.

The emergence of technological tools is on the rise. It has suggested blockchain and digital watermarking to verify clothes: the luxury goods need to be embedded with some distinctive marks that can be used to trace the fakes. WIPO has noted that blockchain and other new technologies can be used to assist in provision of more efficient… systems in the management of rights.

 On the same note, AI-based image-recognition can search the internet with duplicate patterns that are trademarked. Nevertheless, they remain infantile and cannot take the place of legal rights completely.

The regulatory reactions are in sight. In other jurisdictions, legislators are looking at making platforms accountable. As an example, the next digital services act by the EU will mean that big online platforms will have a duty to take action on illegal goods. Overall, digital markets represent a risk to, as well as a means to (through enforcement mechanisms) enforce fashion trademarks to scale infringement. The maximization of their good and the minimization of their evils still is a major policy goal.

Critical Analysis & Policy Lapses

Even with these tools of law, there are still significant gaps in fashion trademark protection. First, speed versus law: Fashion cycles move quickly, and by the time a court injunction has come out, a trend has already been past. This time discrepancy weakens the control of the brand. Fast-fashion knockoffs are in and out within weeks and are imitating litigation. It has been pointed out by some scholars that the existing IP frameworks are not designed in this dynamic. As an illustration, WIPO commentators point out that, the industry demands tougher protection of designs in the fashion industry, but the economics are tricky- not all imitation is solely unhealthy.

• Clothing designs have been suggested to be legally reformed (e.g. sui generis fashion design rights), but there is no international treaty.
• Fragmentation of territory: There exists a lack in uniformity in standards of brands. One country might not protect what another can protect. An example of it is that a very famous mark could be the subject of an anti-dilution in the U.S and India but reputation-based protection in the EU. This imbalance brings about uncertainty in the enforcement. Critics propose an international consensus of protection of famous marks (not in words of TRIPS Art. 16(2)) but this is not yet agreed.
• Costs and access: Small designers and startups do not have enough money to hold out in court. The policing of counterfeits (legal expenses, investigators, customs registration) is expensive, and only the largest fashion houses can afford to protect their rights regularly. This inequality creates issues of fairness, and to its credit benefits big fast-fashion companies that are in a better position to weather lawsuits.
• Enforcement restrictions digitally: As explained, technological solutions are partial. No international database is available to record all the trademark applications; every market is governed by its own regulations. The automation of content blocking (such as the Trademark Removal Program of Google) may be sluggish or inaccurate. Interestingly, market solutions (such as Amazon Brand Registry) may provide perverse incentives (submitting flood of applications to the trademark office).

The legislation now offers the trademark owners a minimal redress to people infringing the trademark but who are not within a definite channel of trade.

Emerging issues

Influence marketing, virtual fashion shows, NFT-based clothes – the new IP questions are considered. As an example, when an influencer broadcasts a haul, are the brand logos they use in commerce? Are the current trademark regulations adequate in case a brand is selling a digital dress to avatars? Academia has already started to venture into these territories (such as Cavageneros work on the use of sustainable trademarks as a regime).

But there is still no concrete legal advice. Concisely, the existing fashion-trademark legislation offers numerous rights, but the dynamism of fashion and online business reveals policy loopholes in speed, extent and technology that need to be addressed.

Reform Proposals

In a bid to deal with these predicaments, academics and professional organizations have suggested changes. Improvement of design protection is one of the themes. According to the WIPO literary documents, there is certain European fashion stakeholders urging to have stronger global IP protection measures on the fashion designs to reduce counterfeiting losses.

This may be in the form of a sui generis right to fashion of limited term, or as expansion of copyright to clothing to be more predictable. The shorter the exclusive terms (e.g. 3-5 years), the more innovation/imitation may be achieved. An example model is the unregistered Community design (a 3-year protection period on first publication) of the EU; other countries might also consider using grace periods without registration.

The other area of reform is to simplify enforcement by use of technology and regulation. Luxury goods can be promoted to have standard product IDs or blockchain tags by policymakers, and it will be easier to verify their authenticity. Meanwhile, laws might increase the duty of care of intermediaries: the UK and EU are currently transitioning to address the need to have the platforms engage in more active monitoring and more timely takedown of infringing content. Internationalizing such commitments (which could be through WIPO Working Group consultations) would minimize the safe havens of counterfeiters.

It is also important to increase cross-border cooperation. It has been proposed to have a special task force on fashion IP (as there are on movies/music). The international treaties may be revised to clearly incorporate texts and garments designs. The current debates concerning traditional knowledge and cultural expressions by WIPO show that there are certain industry interests that can be bargained at the international level when the interested parties exert pressure (ex: proposals have been floated in WIPO about a fashion design registry).

At the domestic law level, it can be encouraged that trademark registries speed up the process of well-known brand registration. Incentives, as the Amazon example demonstrated, can define the way filings are made: a public registry of famous fashion marks would discourage bad-faith filings and would be of benefit even to small designers. Additionally, an emphasis on other forms of dispute resolution – e.g. industry-wide mediation or design dispute arbitration – could have faster results than the court.

Lastly, reforms in consumer facing ways would help. Tougher regulations regarding the disclosure of influencers and online advertisements would help explain when the utilization of trademarks is indeed commercial. In case any celebrity post outfit is considered an ad, the trademark law is more effective to deal with it. Demand of fakes could be decreased by education campaigns (e.g. the requirement to label products with the label of authenticity). Simply put, policy should be flexible: a mixture of law and technology, as well as the market. Innovation such as blockchain can assist in offering better systems to manage rights as proposed by WIPO specialists.

Conclusion

Fashion trademarks are at the cross-road of creativity, commerce and law. With the pace and the direction of trends in the world, and the global supply chain, safeguarding brand identity must have strong legal frameworks and a nimble enforcement. Luxury houses use trademarks (both conventional marks and trade dress) to give cues to origin and quality, and have to always watch out against dilution and counterfeit flooding by the fast-fashion copyists. International agreements (TRIPS, Paris) and WIPO systems provide a foundation but in practice across UK, EU and in the US and India, there are differences and strategies need to be designed to suit each market. Cases such as Louboutin v YSL and L’Oreal v Bellure have pushed the boundaries of the doctrine of trademarks in fashion, and have demonstrated both the strength and weaknesses of the trademark rights. However, new realities – e-commerce to influencer marketing – pressure the existing regimes. It is probable that these gaps will need to be addressed by a set of technologies (say, by providing frameworks in fashion design protection), by law (introducing authenticity tracking) and platform responsibility. This is aimed at making sure that brand symbols do not lose their source-indicating value, at the same time healthy competition and creativity to flourish in the vibrant fashion industry.

Referances: 

Legislation & Treaties:

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Marrakesh Agreement (1994) Art 16(1).
• Paris Convention on the Protection of Industrial Property (revised 1967) Articles 6bis, 6quinquies.
• Trade Marks Act 1999 (India).

Journal Articles/ Commentary:

• Machnicka, Louis Vuitton Does Not Laugh at its Bags’ Parody’ (2016) 11(5) Journal of Intellectual Property Law and Practice 324.
• Cavagnero, ‘Governing the Fashion Industry (through) Intellectual Property Assets: Systematic Assessment of Individual Trade Marks Embedding Sustainable Claims’ (2021) 16(8) Journal of Intellectual Property Law and Practice 850.
• Fischer, Design Law in the European Fashion Sector (2008) WIPO Magazine (Feb).
• Zarocostas, The Role of IP Rights in the Fashion Business: a U.S. perspective’ (2018) WIPO Magazine (Nov./Dec.)
• Heymann et al., Amazon, Quietly redesigned the Trademark System’ (2020) 108 California Law Review 1169.

Other WIPO, and Technical Sources:

• WIPO Magazine – Focus on Fashion (2018), by World Intellectual Property Organization (WIPO).

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