File: Intellectual property at the service of fashion

“True elegance is in the head. If you have that, the rest will take care of itself. » Diana Vreeland, famous American fashion journalist.

The big fashion houses will confirm that an idea can bring in a lot of money. They will point out that a prying eye or a too-smooth tongue is enough to reduce months of investment to nothing.

In an economy as competitive as ours, the question of the valorization of ideas, developed to become “intellectual creations”, therefore quickly arose. We will admit that the time spent building a collection is difficult to make profitable, since a competitor has the right to copy these creations with complete freedom.

Intellectual property law is a section of law granting exclusive rights to an author for his book, to an engineer for his invention or to a company for his brand: it offers the creator a monopoly limited in time on the exploitation and management of its creation .

Disclaimer: A loyal reader of BonneGueule, Bertrand is a law student. Passionate about intellectual property issues, he wanted to intervene in our columns to explain this often opaque subject to us. The floor is his!

A little history...

Already in the 6th century BC, the inhabitants of the Greek colony of Sybaris granted cooks a monopoly for those who divulged their cooking recipes to the public. Everyone wins: cooks are encouraged to innovate and sybarites enjoy themselves.

At the same time, artisans adorned their pottery with rudimentary marks. These few signs aim to reassure the consumer about the origin of the product and to avoid counterfeiting, that is to say reproductions suggesting that the product is authentic.

But it was during the Italian Renaissance that these first beginnings find real legal resonance. The Italian architect Filippo Brunelleschi obtained one of the first patents in history in 1421 during the construction of the famous “Duomo” in Florence.

Large quantities of marble are transported by the Arno, the river which runs through the Florentine city. Brunelleschi then invented a barge capable of transporting the large quantities of marble necessary for the construction of the Duomo. Against this invention, the inventor is granted an exclusive right to its exploitation.

Venice took the example of Florence fifty-three years later by promulgating the “Parte Veneziana”, a legal text establishing a ten-year monopoly for the creator of a new invention, useful to the community and in working order. This unprecedented policy offers the Serenissima a remarkable concentration of craftsmen and engineers, who will participate in its commercial influence across Europe.

Intellectual property thus appears to be the ideal means of protecting intellectual creation against copying . Its objective is to create a virtuous circle, encouraging society to invest time and capital in new artistic or industrial projects. .

What about today ?

Our system of intellectual property protection grew massively during the 19th century. It is divided into two branches:

• on the one hand, the protection of literary and artistic works , granted in particular to artists or software programmers;

• on the other hand, the protection of industrial creations , protecting brands, inventions, designs and models or even our very dear AOP/AOC.

There are therefore a certain number of means available to us to protect our intellectual property. The main lines having now been drawn, let's go into detail by focusing on the specific field of fashion, starting with designs and models.

Designs and models: the most obvious protection

Protecting the “design” of a product

The design regime has the function of protecting the external appearance of a product or a product element. It could be a screen print on a t-shirt, the shape of Pharrell Williams' hat or the cover of a smartphone.

We speak of drawing when the object to be protected is represented in 2D (for example, screen printing); of a model when it is represented in 3D (here, the hat).

Among the legal options available to the textile industry, this protection is a priori the most appropriate: the shapes, cuts or textures of clothing are directly concerned.

To obtain this protection, you must make a deposit for each design or model with the National Institute of Intellectual Property (INPI), or its European side the European Union Intellectual Property Office (EUIPO).

Once the design or model has been filed, it is necessary to request an extension every five years for it to be maintained, the total duration of protection not being able to exceed twenty-five years.

And in practice?

The rapid cycle of collections, however, makes this deposit unsuitable for most items sold. A simplified filing system has therefore been provided for by article L512-2 of the intellectual property code “for designs or models relating to industries which frequently renew the shape (…) of their products”.

This article obviously concerns the fashion and clothing industry. It offers the possibility of only summarily protecting the entire collection, then of covering a posteriori the flagship models that have left their mark and therefore risk being widely copied.

In addition, within the European Union there is a special regime for “unregistered” designs, for a short period of three years from the disclosure of the object on European territory. This particular protection does not require a deposit; certainly the duration of this protection is shorter, but it is ultimately a good compromise in terms of fashion, the regime then being closer to that of copyright.

What about copyright?

The author, protected solely because of his creation

Copyright protects “intellectual works”, that is to say literary works, paintings, or even cinematographic works.

It has the immense advantage of not requiring any formality, the work being protected simply by virtue of its creation . It would therefore be illegal for an Internet user to take this article and copy it into their blog without my permission.

Protection of fashion by copyright

At first glance, it might seem surprising to call a piece of clothing a work of art, even though it is a utilitarian object. American “copyright” also makes a distinction between intellectual works (paintings, sculptures, books) which it is possible to protect under this regime, and “utilitarian” articles (chairs, lamps, clothing) which cannot be.

However, French legislation refuses to make such a distinction and expressly cites fashion in article L.112-2 of the Intellectual Property Code as an object covered by copyright. The regime of designs and that of copyright can therefore be combined.

The main problem then arises from a criterion specific to copyright, that of originality. If its rights are contested, the Fashion House may have to demonstrate to the judge the originality of its creation, that is to say the imprint of the designer's personality.

A simple checked shirt or raw jeans cannot therefore be protected by copyright. But if originality is demonstrated, the author is recognized with economic and moral rights over his work.

“Long-lasting” protection

Copyright is dual: it consists of moral rights and economic rights. If moral rights ensure respect or authorship of the work, it is the economic rights that interest fashion companies the most: they make it possible to authorize or not the representation, then the reproduction of the work.

These are the rights which are generally transferred against remuneration, and which allow one to receive what are commonly called “copyrights” or “royalties”. . In practice, the fashion industry often uses copyright, in addition to the classic designs regime.

The first reason, specified above, is that copyright has the advantage of not requiring any deposit: protection costs will therefore only arise in the event of litigation. Then, the duration of protection is particularly long: initially, the author will have this protection until the end of his life, then up to 70 years after his death, his beneficiaries will benefit from economic rights.

Without forgetting trademark law!

Dior, Lacoste, Commune de Paris: whether it is a big name in fashion or a “small” designer from the Marais, trademark law is, among the range of rights that intellectual property entails. , the most useful for companies in this sector.

This regime allows a company to protect a distinctive sign , which will allow it to distinguish its products and services from those of another company. The trademark is, just like the designs and models, subject to registration with the INPI or the EUIPO. Trademark law has the immense advantage of being perpetual, provided you pay a fee every 10 years to keep it in force.

Once again, this is the logic at work: a brand can withstand time and it would be problematic for Coca-Cola to lose its rights to its brand due to its age and success.

The range of what can turn out to be a brand is very extensive: a name, a logo, a color are all signs that can be protected . It must nevertheless be limited to a particular category of products . The INPI, then the judge in the event of a dispute, will nevertheless have to verify a set of criteria, in particular its distinctive character: note that it is neither a generic sign , nor a descriptive sign.

For example, signs like “the beautiful coat” or “the leather shoes” would certainly be recognized as descriptive, and could not constitute a trademark in this capacity.

Putting intellectual property into practice

The fight against copying

Generally, fashion houses prefer to keep their next creations secret and rely on confidentiality until their disclosure to the public, rather than registering classic designs and models. The trademark law, copyright or design law regimes take over a posteriori, in the event of a dispute .

What about foreign counterfeits?

These rights have a territorial dimension, which means that each State has its own intellectual property law. .

This territorial nature poses a problem in terms of international trade, which is why conventions have been signed by almost all the states of the world in order to determine which law is applicable to each international dispute in this area.

The final word: from Mondrian to Saint Laurent

These protection methods, which concern the vast majority of our everyday objects, can therefore be combined. To illustrate this, I suggest you analyze the case of the Mondrian dress, reproduced above:

• First of all, the rights holders of Piet Mondrian have certainly granted authorization to Yves Saint Laurent, under copyright law, so that it is possible for him to copy the work in this way.

• Then, the dress could be protected as such under the regime of designs and models and copyright.

• Finally, the term “Yves Saint Laurent” is protected by the trademark law regime.

And that is the genius of such a complete palette: if “fashion is for France what the gold mines of Peru are for Spain” , intellectual property often knows how to deliver the blow that counterfeiting deserves. Even if this effort is sometimes insufficient, it at least has the merit of doing everything possible to protect this national nugget.