The fashion industry often walks a tightrope with regards to IP: on one side lies the promise of global recognition for fashion-forward designs and on the other, the lurking threat of imitation. In fashion, originality is everything. But creativity without protection, is an open door to imitation.

So how do couturiers keep ahead of the copycats?

RELATED: MetaBirkins NFTs – the Bold Infringement on Hermès’ Iconic Birkin Trade Mark

The Importance of Branding

It is well understood in fashion, that branding transforms a product from a mere item of clothing into a symbol of identity, status, and aspiration. A well-established trade mark carries with it a promise that resonates emotionally with consumers. Buyers don’t pay for an article per se – the quality of the fabric or the stitching – they invest in what the brand represents. This perceived value creates brand loyalty, even at a price premium and despite the fact that competing products offer similar quality, function or form. They say that, in fashion, the label often is the luxury.

The most valuable trade marks in fashion (rumoured to be Louis Vuitton, Nike, Chanel and Hermes – to name but a few) have evolved into fashion power brands by ensuring that there is consistent quality, effective marketing, brand positioning, wide distribution footprint, and performance innovation.

The Intersection of Creativity and Innovation

Although fashion is mostly regarded as a purely aesthetic pursuit, in reality, it can be deeply technical and innovative. Designers are engineers of wearability and structure. This synergy is beautifully embodied in the designs of Salvatore Ferragamo: he rose to fame for the styling of luxury footwear, but he was also a prolific inventor, holding over 350 patents for everything from wedge heels to child-safe soles. His legacy illustrates an important point: fashion is fertile ground for inventions and innovative designs.

Haute couture houses like Gucci, Chanel, and Dior understand this well. Gucci alone has registered hundreds of designs and inventions for handbags, watches, belts, and more.​ These registrations can be enforced, at least for a limited time, to keep copycats at bay and could form the backbone of licensing and other commercial transactions.

Fashion in the Virtual Age

While intellectual property (IP) rights have long been used to gain a competitive advantage in the fashion arena, more recently these rights are being tested in unprecedented digital contexts. In a first case of its kind, Hermès took on NFT artist Mason Rothschild over his “MetaBirkins” collection – digital caricatures of the famous Birkin handbag rendered in faux fur and sold as NFTs. Rothschild argued that the project was art, shielded by free speech. Hermès contended that it was trade mark infringement.

Ultimately, the court agreed with Hermès. A jury found Rothschild had intentionally misled consumers into thinking the ‘digital bags’ were affiliated with the luxury brand. He was held liable for trade mark infringement, dilution, and cybersquatting​.

This case sent shockwaves through both the fashion and tech industries, illustrating in no uncertain terms, that real-world trade marks extend into the virtual world. Trade marks can be protected from unauthorised use, not only in boutiques or on billboards, but also on blockchain and digital art platforms.

The Counterfeit Crisis in the e-Marketplace

While the metaverse presents new challenges, old ones persist in full force, especially with the rise of online commerce and side-hustle culture. Platforms like eBay, Amazon, Instagram, and TikTok have made it easy for anyone to launch a fashion storefront. But that accessibility has also supercharged the global trade in counterfeit goods.

There can be no doubt that luxury knock-offs are big business. Counterfeits ride the coattails of brand reputation and consumer loyalty without bearing any of the costs of quality or innovation. As consumers chase luxury looks at discount prices, counterfeiters fill the gap by mimicking well-known labels at a fraction of the cost​.

Some online marketplaces, like eBay for example, have taken a clear and unequivocal stance on counterfeiting: “We don’t allow counterfeit items or unauthorized copies to be listed on eBay. Items sold using a brand name or a brand logo must be original and made by the brand or manufactured on their behalf. Software, music, movies and other media must be original and not unauthorized copies.”

Amazon now offers a brand registry for vendors to enrol their brands, together with relevant trade mark information. The registry has several benefits for both brand holders and consumers alike. Brand owners are empowered to police for infringement of their trade marks using proprietary text and image searches on the platform. Amazon also uses advanced machine learning to implement “predictive protections” and then to block potentially infringing products from listing. Swift action against counterfeits enhances the credibility of the Amazon marketplace, which gives consumers the confidence to buy products without any nagging doubts as to their authenticity.

The Fashion IP Frontier

As fashion continues to evolve alongside innovation, the importance of intellectual property in protecting creativity will only deepen. Whether enforcing a monopoly in a technical innovation – wrinkle-resistant fabrics or wearable tech garments, for example – or protecting trade marks from infringement in the metaverse, the industry is learning to speak (a modern version of) the language of IP. Nowadays, fashion houses don’t need to tolerate digital freeloaders and the battle against counterfeits and fakes on e-commerce platforms is only just getting started.