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Hannover Messe, one of the world’s largest industrial technology trade fairs held in Germany,...
This time, I would like to talk about the so-called fashion law, especially in the field of fashion among products.
“Fashion Law” is a general term for various related jurisdictions related to fashion business. From around the early 2000s, due to the development of IT technology, a problem arose in which counterfeit products were created and sold as soon as they were released in collections.
Therefore, in order to develop the fashion industry, research is being carried out on laws specific to the fashion field, including countermeasures against counterfeit products. Among products in the fashion field, products are particularly influenced by trends and are difficult to protect under design laws.
What should you pay attention to when launching a fashion brand?
Applied art and fashion design
Fashion design (here, we mean the outer shape of clothing) is also a type of product design, so it falls under commercial art under copyright law. As I explained earlier, applied art is difficult to protect by copyright.
Reference: https://www.evorix.jp/blog/Product Design and Copyright
Cotton linen embroidery ensemble incident (https://www.courts.go.jp/app/files/hanrei_jp/572/086572_hanrei.pdf), the issue was whether the design of the floral embroidery part could be protected under copyright law as applied art.
Because there were disputes over several products, the original text states it as Plaintiff's Product 2. In this way, the copyrighted property of the plaintiff's products was denied. I don't think it's safe to rely on copyright.
On the other hand, if the illustration itself is copyrighted, such as a T-shirt made by printing a certain illustration, you could claim copyright infringement. In this case, it is difficult to say that fashion design can be strictly protected by copyright, as it is imitating an illustration rather than the shape of the clothing.
From the above, it is preferable to protect fashion designs under the Design Act.
However, since clothing designs are strongly influenced by trends, designs often change within a single season, and since there are many items, it is not realistic to apply for all designs. Leave some of it to the Unfair Competition Prevention Act (described below), and if it is a unique design that could become a brand icon, try to obtain a design right.
Also, It is a good idea to obtain design rights for fashion items such as bags and shoes, which have relatively long life cycles.
Design rights cannot be obtained unless the design is new. Once released into the world, rights cannot be acquired. As an exception to this, there is a system that allows registration only within one year from the date of publication (this is called the application of the exception to loss of novelty).
Even when we say ``putting something out into the world,'' I think there are usually multiple ways to put it out into the world, such as on the Internet, in magazines, and on TV. Currently, the procedure for applying the exception to loss of novelty requires explaining all such acts and proving them each time, which is a very time-consuming procedure.
However, just the other day, a revised bill was approved by the Cabinet, and it will now be possible to register the first act out of the many that can be made public by submitting a certificate. This is a wonderful revision that is easy to catch people's attention and is in line with fashion design.
It will save you the hassle of acquiring design rights in the future, so be proactive in applying (https://www.meti.go.jp/press/2022/03/20230310002/20230310002.html)
Unfair Competition Prevention Law and Fashion Design
Even for fashion designs for which design rights have not been obtained, it may be possible to exercise rights under the Unfair Competition Prevention Act against dead copies (imitation of product form [Unfair Competition Prevention Act, Article 2, Paragraph 1, Item 3]). For clothes with particularly important designs, we will acquire design rights, and for other items, we will rely on the Unfair Competition Prevention Act, although this is a last resort.
However, the period must be within 3 years from the date the original product was sold in Japan. In addition, the entire form must be substantially the same, not just the partial form (extent of similarity is not permitted). Substantially the same means that they must be "almost the same." For your reference, we will introduce cases in which imitation was approved and cases in which it was not.
First, there are cases where imitation is recognized.
"Both products have the shape of a round neck collar, 2The left and right parts of the button part of the front body are made of lace fabric with a ladder-like pattern in an area separated by a certain width in the vertical direction, and there are parts with horizontal openings at regular intervals from the top and bottom, 3The outside part and the cuff part are embroidered with two types of floral patterns alternately. The two products have a common characteristic in that they have no embroidery on the sleeves and hem.The two products have almost the same shape when viewed from the back, so the overall shape of the two products is very similar and can be considered to be substantially the same.
This is a case where imitation was not recognized.
"Plaintiff's Product 1 is different in that the armholes are so-called American sleeves with large shoulders (almost no shoulder peaks), whereas Defendant's Product 1's armholes hide the shoulders (the width of the shoulder peaks extends from the neckline to the base of the arms). It has a silhouette called a mermaid line, which narrows down from around the thighs, whereas Defendant Product 1 is different in that it has a silhouette called A-line, which doesn't narrow down from the thighs of both legs...The armholes are either large or cover the shoulders. The shape of the underwear you wear differs depending on the shape of the underwear, and the impression you get from the perspective of the degree of skin exposure varies greatly.The difference in shape is an important factor to consider when purchasing a product.In addition, whether the silhouette is called a mermaid line or an A-line silhouette is also important. In-line style emphasizes the waist and leg lines of the woman who wears it, whereas A-line style has more room around the waist and legs and does not emphasize the body line.As mentioned above, this difference in shape is an important factor to consider when purchasing a product, as it greatly affects the overall impression of the wearer.
In addition to the above-mentioned form imitation, cases where the form itself is so famous that it attracts customers falls under unfair competition, but cases that were actually fought in court and injunctions and damages claims were approved include Hermès Birkin, ISSEY In many cases, it is a well-known brand such as MIYAKE's BAOBAO, so the hurdles are always high (display of well-known products, display of famous products [Unfair Competition Prevention Article 2, Paragraph 1, Items 1 and 2]).
Therefore, it is not a good idea to actively rely on Article 2, Paragraph 1, Items 1 and 2 of Unfair Competition Prevention. When starting up, there is little chance of winning.
Trademark law and fashion brands
It is a must to register your brand name as a trademark. In this regard, when it comes to fashion, people often use their own names as brand names. I previously explained that it is becoming difficult to register names as trademarks (see: https://www.evorix.jp/blog/Trademark registration of full names of people).
At that time, I mentioned that discussions were being held about relaxing the requirements, and the Cabinet approved the revised bill, which will allow full names to be registered as trademarks under certain requirements. Please register when the revised law comes into effect (https://www.meti.go.jp/press/2022/03/20230310002/20230310002.html).
This is also a recent story. Regarding Fashion Law, the Ministry of Economy, Trade and Industry has released "FASHION LAWGUIDEBOOK 2023".
This guidebook summarizes the legal issues faced in the fashion business into a checklist, and also explains the basic points. What you should do after launching your brand, and what you can do to protect your brand.
On the other hand, it is very helpful as it comprehensively summarizes what not to do. If you are starting a brand, we recommend that you read it.
FASHION LAWGUIDEBOOK 2023:
https://www.meti.go.jp/shingikai/mono_info_service/fashionlaw_wg/pdf/20230331_1.pdf
AUTHOR
Takefumi SUGIURA （杉浦 健文）
EVORIX Intellectual Property Law Firm Managing Patent Attorney
Supports clients across IT, manufacturing, startups, fashion, and medical industries, covering patent, trademark, design, and copyright filings through trials and infringement litigation. Specialized in IP strategy for AI, IoT, Web3, and FinTech. Member of the Japan Patent Attorneys Association (JPAA), Asian Patent Attorneys Association (APAA), and Japan Trademark Association (JTA).
