Fashion protection in the light of Intellectual Property and its considerations in Costa Rica

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Fashion protection in the light of Intellectual Property and its considerations in Costa Rica

Intellectual Property is divided into two main areas, copyright and industrial property. To see them applied to the fashion industry, both within the national and international context, we will be addressing each of them in greater depth.

The fashion industry has the particularity that garments can be protected through the applied work of art (belonging to the area of copyright) and through the industrial design (belonging to the area of industrial property).

Work of Applied Art

Refers to works that apply artistic elements to objects of practical use, including textile designs. Works of applied art are required to have:

 

  • Possess an aesthetic beauty that is applied to an object.
  • Have a practical and useful utility that satisfies human needs.

Industrial Design

On the other hand, fashion garments can also find protection through industrial designs, and these refer to the ornamental or aesthetic aspect of a product that may contain two-dimensional or three-dimensional features. It is worth mentioning that the importance of protection by means of industrial design lies in the fact that, due to its aesthetic appeal, the commercial value of the product and its sales possibilities increase.

Likewise, both works of applied art and industrial designs and drawings share certain characteristics, such as:

 

  • In both, the aesthetics of the garment prevails, i.e. its beauty to the human eye.
  • They have an artistic character through the creative work of the designer.
  • In both there is authorship of the artistic creation.

Considerations for the protection of fashion garments by applied work of art:

As it is a protection by means of copyright, it has the advantage that it is not necessary to register the garments to receive protection, as with only the creation of these, they receive legal protection by means of Intellectual Property. It also has a longer term of protection than the industrial design, extending for the whole life of the author plus 70 years after his or her death. This protection extends and covers both economic rights with respect to commercial and economic exploitation, as well as moral rights, which allow unwaivable recognition of authorship.

Finally, if – although it is not compulsory – the designer decides to register his designs or garments with the Intellectual Property Registry, the registration procedure is more flexible, with fewer formalities and is less costly.

However, among the disadvantages of protection by means of applied work of art, we find that there may be disadvantages because only the requirement of originality is demanded and not novelty in the garment, which means that there may be other similar or similar designs on the market of which the designer must accept their coexistence.

Along the same lines, the fact that originality is not a requirement has the disadvantage that, if a third-party plagiarism, copies or makes an improper use of the garments, the designer must file the corresponding claims and prove that these garments are of his authorship; but if they were registered, the certificate of ownership would give him greater legal security and a more robust proof of his opposability.

Considerations for the protection of fashion garments by means of industrial design.

In this case, if the artist decides to protect his garments by means of an industrial design or drawing, he has a main advantage: the protection is broader for the garment in general the cuts, lines, shapes, among others, are protected in a more detailed and meticulous manner. Likewise, although the requirements for registration are more rigorous, by requiring that the garment complies with the novelty requirement – that is, that there is no other like it on the market – the risk of a third party registering the same or similar garment as an industrial design is reduced.

However, the disadvantages of the industrial design and drawing are that, as registration and registration are mandatory, this application is much more costly than the registration of the applied work of art, and the requirements for these are more rigorous as they are subject, as part of the process, to a substantive examination in which their compliance with the novelty requirement is assessed. Finally, the term of protection is shorter, as in this case, it is only for 10 years, while the work of applied art has 70 years of protection after the death of the author. Challenges for the fashion industry in the light of Intellectual Property.

However, the disadvantages of industrial design and drawing are that, as registration and registration are compulsory, this application is much more onerous than the registration of the work of applied art, and the requirements for these are more rigorous as they are subject, as part of the process, to a substantive examination in which their compliance with the novelty requirement is assessed.

Finally, the term of protection is shorter, as in this case, it is only for 10 years, while the applied work of art has 70 years of protection after the death of the author.

Challenges for the fashion industry in the light of Intellectual Property.

Now, there are several challenges that the industry faces, however, I consider it convenient to illustrate some of the cross-cutting factors that affect the sector both in our country and internationally.

The fashion industry, like many other sectors of economic and commercial relevance, faces several challenges in seeking success in all the areas that are proposed, however, it is not only about achieving the best possible protection in itself, but also about foreseeing and preparing to face the challenges that technology and innovation may pose.

Taking into consideration that although there are challenges specific to the industry, such as Fast Fashion (that unsustainable production model in which clothing collections are created in an accelerated manner, at low economic cost, with the aim of following the latest fashion trends almost immediately), some cross-cutting factors affecting the fashion industry will be analysed and addressed below: To begin with, unfortunately, it is necessary to make visible that the SARS-COV 2 pandemic played a significant role in the decrease in profits as a result of the reduction in garment sales. However, it is important to address the issue of fashion by looking at the following 5 factors:

 

  1. The socio-economic context.
  2. Unfair competition.
  3. Plagiarism and piracy.
  4. Electronic commerce.
  5. The constant quest to shield and strengthen the protection of works.

Unfair competition, plagiarism and piracy are the greatest active threat that erodes the intellectual property rights of their creators and owners, which is why, together with what has been mentioned above, it is essential to seek protection, considering that there may be distributors who, actively and adequately without having the legal permission to distribute and sell products, sell them at lower prices. Plagiarism, which is an almost exact copy of the design, but which does not use the same name or the same patterns as the original brand, must also be dealt with.

Examples of this could be that a piece of clothing instead of saying “Victoria’s Secret” is “Vicky’s Secrets” or that the Nike swoosh is placed upside down on the shoe. On the other hand, in product piracy, in addition to copying the design, the same brand is also used without due authorization on the product, which is of low quality in terms of materials and production in order to confuse the consumer and take over the lower cost sales sector.

We also have a sector of commerce that is in vogue, as it has fantastic qualities for both producers and consumers, although unfortunately it also lends itself to activities such as those described in the previous point. As far as e-commerce is concerned, although it is true that it was a crucial element in helping to “get a leg up” on various sectors of the economy in times of pandemic, there is a risk of finding situations where the consumer is exposed to the risk of being deceived or voluntarily looking for products like what he/she is originally looking for, but at a lower cost. In this case technology allows a greater and more immediate opening and dissemination of a collection of designs for sale – and of course facilitates the execution of the sale and delivery of the product – but at the same time allows other people to take advantage of the images and details of the product to try to make a copy of it and sell it at a lower cost.

Now, to continue, it is necessary to address the socio-economic context of the country to better understand the relevance of Intellectual Property protection for works of Applied Art and Industrial Design at the national level.

As we can see in this graph, the blue line reflects the current and future data, the orange line marks the upward trend while the green color distinguishes the value of the Costa Rican market in billions of dollars.

It is relevant to mention the decrease in profits between 2019 and 2020, a year in which it gradually begins to improve and finally starts a steady and stable rise in profits.

The international fashion industry is expected to post earnings of up to USD 1,710 billion in 2022, with a trend to exceed USD 2,000 billion by 2027.

For its part, the Costa Rican market is an important economic and commercial agent, contributing approximately $0.88 billion dollars so far in 2023 – with an upward trend – and is expected to reach $1.08 billion dollars in 2026. But how does this translate into investment per person? Costa Rica, in 2019, had a per capita investment of $226 per year dedicated to apparel and footwear purchases (first for women’s apparel and footwear and then for men’s and children’s apparel and footwear).

We see then how the country reflects the importance of commercial, communication and dissemination agents such as the collaboration with designers in the Mercedes-Benz Fashion Week, Traffic Magazine, university schools of the highest level to support and provide knowledge to the designers of today and the future. All this translates into an increasing investment by Costa Ricans. Trademark protection situation in Costa Rica.

Now, this graph below details something very important with respect to the Costa Rican national market. This does not only include trademarks registered or in process at the national level in general, but also those whose owners are proudly Costa Rican, to have a better idea of the active trademark protection that exists at the level of registration in the country.

Based on information compiled and analyzed from the Costa Rican Intellectual Property Registry, TM View of the World Property Organization, and the statistics website statista.com.

Specifically, class 25 is the one that concerns us in this topic, as it covers clothing, footwear and headgear (with the exception of specialized protective clothing such as surgical, fire protection, or protective sportswear).

For example, this graph shows in the first column from left to right, that, in total, since approximately the 1800s, there are 20,797 active, pending, and inactive trademarks in the country, while the right column shows those exclusively with Costa Rican owners: 11,605, of which 4480 are active, 6455 are inactive and 669 are pending.

Interestingly, worldwide, there are 2,175,370 million active trademarks in class 25 since the 1800s. This shows the growing importance of fashion and its protection, not only in the world but also in Costa Rica.

This trademark protection is important, as it not only generates distinctiveness among the ever-increasing competition, but also allows foreign designers, Costa Rican designers, artists and right holders to recognize the intrinsic value of their creativity, their designs and the importance of their protection.

In conclusion, it is clear the importance and growing scope of the fashion industry in the economy, not only through purchases in physical shops, but also through e-commerce, and thus, being that Intellectual Property is synonymous with protection, distinctiveness, incentive and reward of human creativity, it is necessary to emphasize that fashion protects these works, not only for being garments, but for its complement between the artistic and ornamental character of the work or design.

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