In Vogue: Sustainability, fast fashion and intellectual property

In Vogue: Sustainability, fast fashion and intellectual property

At present, fast fashion has been a buzzword for those in the social media industry who all seem to shun the trend owing to the stark reality of the burden it has placed on the planet. In its stead, advocating for sustainable fashion has been the talk of the town with multiple fast fashion brands even changing course and producing clothes in a more eco-friendly and sustainable manner. In the midst of a global pandemic, this hardly seems like a cause for concern, however the fashion industry forms a significant part of economies worldwide in different capacities such as the production and trade of raw materials, design, manufacturing, and retail. With this in mind, the issue of sustainable fashion versus fast fashion ought to be addressed with a view to offering solutions to the crux of the problem: the lack of intellectual property protection which allows such production to go unchecked.

Fast fashion is the rapid turnover of clothing, sampled or often directly copied, from the catwalk and into stores to cater to new trends. This allows the average mainstream consumer to purchase cheap and trendy clothing at an affordable price. However, owing to increasing demand and purchasing power of consumers, fast fashion brands are able to churn out multiple designs a month that soon go out of fashion and leads to an unsustainable “throw away” culture in the industry. The problems associated with numerous fast fashion brands are not just limited to their unsustainable product life cycle but tend to include unethical labour practices and the inevitable infringements in intellectual property rights which is both the problem and potential solution to putting a halt to this harmful industry.

In countries such as the United States, intellectual property protection for functional items is limited. As a result of this, there tends to be a proliferation of fast fashion and legal action sought against these brands for the rampant copying that is such a necessary component of the business model. In such instances, where intellectual property protection is weak or limited, it becomes relatively easy to create an atmosphere for unsustainable practices to thrive. A potential solution for this would be to provide for intellectual property rights to protect these items.

Copyright protection of fashion designs is currently difficult to enforce owing to the ambiguities in laws in various countries which offer different levels of protection. In France, for instance, copyright protection is given to “any original work expressed in any form”. In the United States functional objects such as clothing are not protected by copyright. The concept of separability offers limited protection to aesthetic features of the clothing which can be separated from the garment as a standalone copyrightable work. For a country with unparalleled intellectual property filing activity and leading in fashion centres, this level of protection has been criticised as it does not necessarily protect designers from obvious and persistent copying. Fast fashion brands are therefore still able to infringe on designs, mass produce them, and contribute to an entirely unsustainable culture that continues to pollute the environment. Trademark protection has also proven inefficient against fast fashion copying as it merely protects the logo or brand affixed to the product as opposed to the product as a whole.

The EU pioneered the concept of ‘design rights’ which provide protection for ‘the appearance of a whole or part of a product resulting from the features of, in particular, the lines, contours, shape, texture and/or materials of the product itself or its ornamentation’. The concept has been adopted by countries like Japan, Brazil, India, and Israel. This form of protection is available for both registered and unregistered designs and offers a solution worth considering to the fast fashion problem.

Fast fashion is an industry that is kept alive by the unique inadequacy of intellectual property protection and creates global problems in the form of unsustainability of resources and human rights issues. This post has attempted to portray how this unnecessary chain of events may be entirely avoided by providing substantial intellectual property rights to designers which would obviate the kind of access to, and use of, designs that the fast fashion industry relies on for its success.

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