Fashion law is real!

It’s unfortunate that Toronto Fashion Week hasn’t run for the past few years during the pandemic and didn’t run again this year. We’ve watched fashion weeks around the world continue with their S/S 2024 collections over the past few weeks again. Traditionally there are two fashion week times a year—one in the fall and one in spring. 

People ask me all the time, What is fashion law? Fashion law touches on the various laws that the fashion industry must follow from the time a luxury good is thought of until it gets into the consumer’s hands. This includes intellectual property, contracts, consumer and competition law, and more. It includes how the product should be designed and how one’s brand is to be protected, how the product is manufactured or where it is sourced, where it can be distributed, how it is marketed, and how it is sold. Fashion law is also known as the law of luxury goods.  

Some wonder why there is a need to distinguish fashion law from the other areas of law. There is a need to recognize the needs of those in the fashion industry apart from others, because their needs are sometimes unique. Why can’t a fashion designer who wants to protect his/her brand just go to a lawyer who practises in intellectual property? In many places, even in places very famous for big labels in fashion, there is little to really protect their goods or final products from being counterfeited or copied. The labels or logos on their goods are often afforded the full benefits of the protection of copyright and trademarks law, whereas the design of the good or the good itself is not.  

What about patents and industrial designs (or design patents in United States)? Yes, designers can use these too. Patents (aka utility patents in the US) are for designers who create something functionally innovative or unique. Examples of patented goods include the zipper or Velcro. Industrial designs/design patents are for the aesthetics of the finished good. You can combine these various protected intellectual property elements—i.e., you can get both a utility patent and an industrial design patent for one article, as well as a trademark for the brand logo on it. However, patents and industrial designs are often impractical for many designers, as they are costly and registration takes time.   

With fashion week, there comes an understanding of “fashion seasons.” In many other industries, there is a great need to protect trade secrets and confidentiality. There is protection by way of confidence if it is a good shared only with people with the expectation that they will keep it private or only use the information they have gained for the purpose for which they have been given the information. For example, protection by way of confidence may apply in order to manufacture a good or to help register a logo. Once upon a time, designers would have fashion shows that were very exclusive to people in the industry, so those intending to counterfeit a design would have to be very sneaky. However, in the digital age of counterfeiting, newly released images of fashion designs can pop up on the internet the same day or be live streamed through social media. It isn’t as hard for people wanting to find out what a designer is planning to release right away as it was decades ago.  

Designers are designing for every season, and by the time a design is registered as an industrial design, the season could very well be over. New designers want to market themselves in time for fashion seasons and get their collections out there to build a name for themselves as quickly as possible. Continuing designers want to show the industry that they haven’t lost their touch. Many designers can’t afford to wait around to register their designs, but at the same time, releasing their designs in fashion shows to the public and allowing for photos exposes them to potential counterfeiting or copying brands.  

If you’re a current or aspiring fashion designer and you want legal advice for your brand, rather than hiring a lawyer with expertise in intellectual property, it is best to go to a lawyer who understands the industry or who is willing to understand your particular needs so that they will cater their advice.     

Disclaimer: This post is for informational purposes only and does not constitute legal advice. I am not responsible for any damages resulted from using information in this article. Please consult a lawyer for advice on your unique circumstances.