Fashion Products Are More Than Just Branding
Fashion intellectual property is often associated with luxury brands and trade marks. Names such as Chanel, YSL and Louis Vuitton are often the first to come to mind.
As logos and brand names are often the most visible part of a fashion business, many people associate fashion intellectual property with trade marks alone. It is easy to picture a model walking a runway, appearing in an advertising campaign, or being photographed with a designer logo prominently displayed across the front of a garment.
However, fashion products are often much more than branding alone. A single product may incorporate creative artwork, distinctive visual design and innovative functionality, each of which may be protected by a different form of intellectual property.
Fashion as an Intellectual Property Ecosystem
A single fashion product may contain several different types of intellectual property. Its name and logo help customers recognise the brand, while its artwork, patterns and prints add creative value. The shape and overall appearance of the product may make it stand out, and some products may also include new or useful technology. Each of these features may be protected in a different way.
These protections do not work separately. Instead, they work together to protect the different elements that make the product unique. Looking at fashion as an intellectual property ecosystem helps businesses understand that the value of a product may come from more than its brand name alone.
Trade Marks: Protecting Brand Identity
Trademarks are often the first thing people think of when it comes to fashion. They protect the names, logos and branding that make a business recognisable. For example, two handbags may look similar, but once a consumer sees the Chanel or Dior logo, they immediately know which brand they are purchasing. Fashion businesses often invest significant time and money into building their reputation, and trade marks help protect the identity that customers associate with their products.
According to section 17 of the Trade Marks Act 1995 (Cth), a trade mark is a sign used to distinguish the goods or services of one trader from those of another. Section 20 of the Trade Marks Act states that registering a trade mark gives a business the exclusive right to use that brand in connection with its registered goods and services and to authorise others to use it. This helps protect the value that businesses build in their reputation, prevents competitors from adopting similar branding, and reduces the risk of consumer confusion. While trade marks are only one form of intellectual property used in the fashion industry, they are often among the most valuable because they protect the identity of a brand and the goodwill associated with it.
Copyright: Protecting Creative Expression
Copyright protects original creative expression. Under section 32 of the Copyright Act 1968 (Cth), copyright can protect original artistic, literary, dramatic and musical works. In the fashion industry, copyright is most commonly associated with graphic designs, prints, artwork and decorative elements incorporated into clothing and accessories. Unlike trade marks, copyright protection generally arises automatically once an original work is created and does not require registration with IP Australia.
Think of a floral print on a dress, a cheetah pattern on a handbag, or a unique illustration featured on a t-shirt. These creative elements may be protected by copyright because they reflect the skill, effort and artistic expression of their creator. Copyright helps protect the creative work behind a fashion product and prevents others from reproducing or copying that work without permission.
Design Rights: Protecting Product Appearance
Design rights protect the visual appearance of a product. Many people assume that the appearance of a fashion product is automatically protected by copyright, however copyright and design rights protect different aspects of a product. Copyright generally protects artistic works such as graphics, prints and artwork, while design rights protect the appearance of the product itself. For example, the pleats of a skirt, the shape of a handbag or the silhouette of a dress may be protected by design rights. By contrast, a floral or plaid print applied to that product may be protected by copyright.
According to section 15 of the Designs Act 2003 (Cth), to register a design with IP Australia, the design must generally be new and distinctive. Unlike copyright, design protection is not automatic and requires registration. Design rights are particularly important in the fashion industry because they protect the visual features that consumers ultimately see and wear. This additional layer of protection can help businesses protect the appearance of products that distinguish them from competitors.
Patents: Protecting Innovation
One often overlooked form of intellectual property in the fashion industry is patents. Patents are commonly associated with industries such as engineering, technology and pharmaceuticals, however they can also play an important role in fashion, particularly where fashion and innovation intersect. While fashion is often viewed as a creative industry, many products also involve technical developments that may be capable of patent protection.
For example, activewear may incorporate a new moisture-wicking or anti-perspirant fabric designed to absorb sweat more effectively and improve comfort during exercise. If that technology is new and inventive, it may be eligible for patent protection. Section 13 of the Patents Act 1990 (Cth) grants the owner exclusive rights to commercially exploit that innovation for a limited period of time, effectively allowing them to monopolise the invention and prevent competitors from using it without permission. This can provide a significant competitive advantage and help a business become associated with a particular innovation before others are able to enter the market. Patents demonstrate that fashion is not only about creativity and design, but can also involve science, technology and innovation.
While each right protects something different, they often work together in practice. The following example demonstrates how multiple forms of intellectual property can exist within a single fashion product.
Example 1: The Intellectual Property Ecosystem In Action
To demonstrate how these rights can work together, consider the hypothetical fashion brand ‘Example 1’. Example 1 is an activewear brand designed for runners. Unlike traditional running gear that relies on separate hydration backpacks, ‘Example 1’ garments incorporate a built-in hydration system capable of carrying water, electrolytes and energy gels directly within the garment.
In this example, all four forms of intellectual property work together. The trade mark protects the name ‘Example 1’ and its wave-inspired logo, helping consumers recognise the brand and distinguish it from competitors. Copyright protects the wave graphic featured on the garment, which was created by an artist and reflects original creative expression. Design rights protect the visual appearance of the product, including its sleek, aerodynamic fit and the distinctive blue curved panels along the sides of the garment. Finally, the integrated hydration system may be protected by a patent if it involves a new and inventive technology.
Together, these rights create multiple layers of protection around a single product. The trade mark protects the brand, copyright protects the artwork, design rights protect the appearance of the garment, and the patent protects the innovation behind the hydration system. By protecting each element separately, the business is better positioned to build brand recognition, maintain a competitive advantage and prevent competitors from copying key aspects of the product. This demonstrates how fashion, creativity and innovation often operate as part of a broader intellectual property ecosystem.
Why This Matters for Fashion Businesses
For fashion businesses, understanding the different forms of intellectual property can be just as important as protecting a brand name. Intellectual property in fashion is often viewed through the lens of logos and trade marks. However, a brand’s identity is often shaped by much more than its branding alone.
A product’s artwork, appearance and innovative features can all contribute to what consumers recognise and associate with a business. If these elements are left unprotected, businesses may risk losing aspects of what makes their products distinctive in the marketplace.
When Should Fashion Businesses Consider Intellectual Property?
Fashion businesses should consider intellectual property from the earliest stages of product development, rather than waiting until a product is ready to launch. Before publicly sharing a design or beginning production, a business should identify what may require protection, confirm who owns it and consider whether any applications should be filed.
Intellectual property should also be reviewed when launching a product, collaborating with designers or manufacturers, expanding into new markets or introducing significant product changes. Addressing these issues early can help businesses protect what makes their products distinctive and make informed decisions about how those products are developed and commercialised.
How OpenLegal Can Help
Fashion products may contain more intellectual property than businesses realise. OpenLegal can assist your business in identifying and protecting valuable intellectual property assets, including trademarks, copyright and design rights.
OpenLegal offers a free 15-minute consultation to discuss your matter and how we may be able to assist.
Visit openlegal.com.au to learn more.
Article Written By Intern Christie Kafiris
