Fashion Law: Protect Your Creativity Through Intellectual Property

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THE fashion industry involves significant creativity and innovation, satisfying the criteria of both aesthetic design and utility to consumers. Fashion designs may also be manifestations of art, culture and symbolism. Globally, fashion is a multi-billion dollar industry and creates jobs for designers, models, beauticians and make-up artists, producers, textile designers, manufacturers, event organisers and more. It is also intrinsically linked to other creative industries, including the arts, film and music.

The fashion industry can indeed make a positive contribution to Zimbabwe’s development. However, there is a need for the establishment of quality design and modelling schools, for the launch and promotion of authentic Zimbabwean prêta-porter brands, for increased competitiveness in the local textile industry and for the adaptation of the textile industry to the international market.

It is vital for fashion enterprises to obtain sound legal advice at an early stage in order to appropriately protect their creativity through IP rights, and be able to realise their commercial potential. Fashion SMEs need to develop an IP strategy and incorporate it into their overall business strategy.

Governments can create an enabling policy environment that is conducive to the operation of an effective IP system and the commercial success of SMEs, both of which are very much underpinned by the state of infrastructure and institutions within a particular jurisdiction.

An effective system of IP protection and enforcement, together with institutions mandated to enhance commercial potential and allow the transfer of knowledge to take place, can create an enabling environment for innovation and creativity to flourish in the Zimbabwean fashion design industry and beyond.

IP Rights Protection for the Fashion Industry
A general lack of reliance on and awareness of IP within the Zimbabwean fashion industry is prevalent and in much of Africa, with South Africa and Nigeria faring better than the rest. There are national, regional and international legal mechanisms available to the fashion design industry in Zimbabwe with respect to IP protection.

IP Strategies for the Fashion Industry
Developments in trade on the African continent has created growing possibilities for the African fashion industry to strategically exploit IP assets through licensing, franchising and merchandising, which may effectively capture value, increase income and expand business operations. There are useful ways to incorporate IP for commercialisation and how Zimbabwean fashion businesses can achieve this. IP strategy must be fully integrated with the overall business strategy of enterprises, ensuring that even partners such as suppliers have an understanding of the brand and how the business model operates, in order for the enterprises to benefit from commercial engagements.

IP and Traditional Designs
Manifestations of tradition and culture are a source of inspiration and creativity for the fashion industry. There are possible opportunities that IP protection presents for fashion designs that may be considered as traditional cultural expressions (TCEs). There are some IP tools that may be useful for the protection of TCEs in some national and regional contexts in Africa. The Ghanaian kente and adinkra cloths are significant examples of traditional designs. There are advantages and disadvantages of utilising existing IP laws for the protection and commercialisation of TCEs designs in the context of the African fashion design industry.

There are many unique and popular traditional textile products being produced by Indigenous groups in Zimbabwe and around the world. Often, these products are made, marketed and sold by indigenous or Iindigenous-affiliated organisations without a solid understanding of intellectual property and the benefits it could confer.

The Importance of Branding

  1. Creating and Using a Trademark

Trademarks identify producers and sellers and allow prospective purchasers to distinguish their products in the marketplace. Trademark status may be granted to distinctive symbols, pictures, words, unique packaging, color combinations, building designs, product styles, and overall presentations. The owner of a trademark has the exclusive right to use it on the product he or she meant it to identify and, usually, to use it on related products. Service marks enjoy similar legal protection as trademarks but are meant to distinguish services rather than products.

  1. Geographic Indications
    The term ‘geographical indication’ generally refers to words or marks used on goods (1) having specific geographical origins, which are (2) endowed with certain qualities that are attributable to that region. Geographical indications (GIs) are often the names of the place from which something comes. Some examples include Roquefort cheese (from Roquefort, France) and Florida oranges (from the state of Florida in the United States). Women involved in basketry or weaving can come up with a geographical Indication mark to identify their products for example “Lupane Basket” or “Lupane Mat”.
  2. Certification Marks
    As opposed to a trademark specifying a specific producer or manufacturer of a good or service, a certification mark is usually applied to a product by an outside “certifying” body. Certification marks are an indication to consumers that certain standards have been met, and certification marks therefore have a “stamp of approval” function. SMEs in Zimbabwe can benefit from this approach.

Education, Innovation and Technology in Fashion
Education on IP with a focus on fashion innovation will inspire further original design and entrepreneurship. The major challenges and opportunities facing the African fashion design industry is drawing synergies between education, innovation and IP utilisation. Some of the recent industry developments in technology and innovation in the fashion design industry, such as 3D printing, can assist the African fashion design industry to address some of the IP-related opportunities and challenges confronting the sector.

The Zimbabwean fashion design industry may be able to effectively use the IP system to capture value, enhance the protection and commercialisation of its designs, and stimulate long-term competitiveness with the adoption of a clear strategy and a set of holistic policy considerations. Establishing collective marks or certification marks for associations or cooperatives of women fashion designers could encourage gender empowerment.

Intellectual property is a powerful tool in protecting the integrity of a brand or culture. It can offer a degree of control as your SME puts its cultural products into the stream of international commerce. SMEs are encouraged to effectively use the premises of trademark or certification mark law: to “Brand” themselves such that prospective consumers know their work and know how to differentiate between the work and someone else’s. With strong recognition and loyal customers, SMEs will be using intellectual property law to their advantage.

By Aleck Ncube, an Intellectual Property Scholar

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