EU & LATAM Fashion and IP, Moeller’s Insider Opinion
Technology, mostly the Internet, is responsible for redefining everything humans know, including Intellectual Property (IP). The challenge is to determine what is the correct type of protection that the law should conferred to technology innovators without excluding society from that innovation, and the possibility of improving it.
The challenge would be determining what the correct type of protection is. The law should benefit innovators without excluding society from said innovation and the possibility of improving it.
This is most definitely applicable to the fashion industry in the sense that fashion innovation is the motor for quality, novelty, progress, original expression, etc. Imitation is what makes these new creations accessible to the masses, which in time, activates commerce.
Does granting a temporary monopoly over fashion designs allows designers to perceive a monetary return for their creative investment? Would the incentive for creation be diminished without the protection offered by traditional institutions of Intellectual Property?
The European model shows us that given the fleeting nature of fashion designs, a registration system of protection does not really conform to reality. However, Europeans do have an interesting solution to this: non-registered communitarian design. The protection granted for the designs is effective for a 3 year term by solely making the design available to the public and aiming to prevent identical imitation of the original garments.
Emulating this type of protection in Latin America would be translated into preventing a rough copy of original designs created in fashion epicenters. At the same time, the protection would allow other creators to get inspiration from these creations, transforming it and creating something new.
In the Latin American region, given the lack of harmony in regional legislation -as per flexibility granted by the trade-related aspects of IP rights- different countries protect fashion by several different IP systems. TM protection continues to be the more effective way of protecting the fashion industry’s assets worldwide.
When thinking about a system to protect creative designs referring to clothing and accessories it is important to keep in mind that in this industry, to quote Bill Gates, “(Intellectual Property) has the shelf life of a banana.”