Term Assignment by Maria Liu
The fashion industry is a complex area where IP law protection is important but less defined than in traditional art industries. In fashion, trademarks play a greater role than copyright, which usually protects literary, music, and other artistic works. Copyright generally does not extend to functional items like clothing but does protect original prints, textile patterns, and graphic designs.[1] In the US, the Supreme Court in Star Athletica v. Varsity Brands (2017) concluded that clothing is non-copyrightable because it serves a utilitarian purpose, and fashion garments are commonly not viewed as pieces of artwork or original works of authorship where creativity is protected.[2] To give a few examples: a unique designer fabric print can be copyrighted, but a simple dress silhouette cannot; the way that designs are cut and put together is not copyrightable, but companies can apply for design patents for uniquely shaped/cut clothing; and graphic and textile designs that contain a sufficient amount of creative expression may be copyrighted, but ones that demonstrate only minimal creativity cannot.[3]
In comparison, trademarks are much more commonly used and are more easily applied to fashion. Trademarks protect brand names, logos, and symbols that distinguish a designer company’s products from competitors.[4] This protection is especially important in fields where consumers purchase for brand uniqueness. Trademarks are thus used for maintaining brand identity. One example here would be the LV’s toile monogram that was registered as a trademark in 1896.[5] Similarly, LV also owns the Louis Vuitton x Murakami “Multicolore” Monogram design. In 2003, Takashi Murakami created a multicoloured toile monogram design for Louis Vuitton that featured the LV logo in 33 colors.[6] The design was trademarked immediately after its creation as the “Multicolore” Monogram, and became extremely popular among consumers during the early 2000s as one of the iconic LV logos.[7]
Case law involving fashion IP usually engages trademark violations where competitors make counterfeits or semblances of a trademarked design. In 2022, Hermès sued Rothschild, alleging trademark dilution among other claims for Rothschild’s use of the Birkin trademark in that it named its products “MetaBirkins”, which confused the customers as to the origin and brand association of these products.[8] At trial, Rothschild argued that the MetaBirkins were artworks that depicted how people valued luxury goods and how leather good production results in animal cruelty; Hermés on the other hand claimed that Rothschild’s acts would cause consumer confusion as to the source of the MetaBirkin.[9] In the end, the court found Rothschild liable for trademark dilution after considering the well-known design of the Birkin (and the name association with the Hermès brand). and issued a permanent injunction blocking Rothschild from promoting and benefiting from the MetaBirkins.[10]
Single colors can be trademarked if they acquire some meaning that is associated with a specific brand. For example, in 1998, Tiffany & Co. registered the colour “Tiffany Blue” as a trademark.[11] protecting its use in connection with their products, especially jewelry and the iconic blue boxes.[12] The trademark protection for Tiffany Blue is based on the principle established in the Qualitex Co. case, where the Supreme Court determined that a single color can be trademarked if it acquires a secondary meaning, which Tiffany Blue has done.[13] The trademark covers uses of the color that would reasonably confuse the public into believing that the item is a product sold by Tiffany & Co or is related to the company.[14] While the “Tiffany Blue” is a trademarked colour, it does not mean that the company owns the color outright. Applying the general trademark principles of deception and confusion, individuals and other companies can use the color as long as it does not lead them to think that the source is Tiffany & Co.
Under trademarks, fashion brands can register trade dress, which protects the distinctive appearance or service of a product that is associated with a specific brand, such as the red soles of Christian Louboutin shoes.[15] For instance, in 2012, Christian Louboutin sued Yves Saint Laurent (YSL) for trade dress infringement.[16] Louboutin claimed that YSL’s red shoes infringed on its trademark, and argued that the red sole was a distinctive feature of his brand and should protected for its signature look.[17] YSL argued that the red sole was merely an ornamental feature and not a functional design element, therefore not protectable as a trademark.[18] In the end, the court ruled that a brand could reuse Louboutin’s signature red on shoes as long as the whole shoe is covered in red, because having only the soles in red was indeed a copyright violation.[19]
Another example here would be the Birkin bag, which is also protected under trade dress.[20] Since a trade dress covers the overall “look” of a product, including its color, shape, size, texture, packaging, and such, for a handbag to be protected as trade dress, it must be distinctively recognizable by the public.[21] Depending on the jurisdiction, the brand company must prove that consumers associate the bag with its brand company (goodwill), in other words, a handbag protected under trade dress essentially must become synonymous with the brand.[22] This would also mean that lesser known brands that produce unique designs will not be able to afford trade dress protection, and might lose creative designs to larger corporations.
Aside from trademarks, patents also cover fashion-related items and designs. Patents can protect ornamental designs and can also be applied to unique fashion pieces.[23] However, patents are used less frequently due to the nature of fashion trends to evolve quickly.[24] Trending styles can be in season from a few months to a few years unless a particular style becomes iconic (e.g., the Hermès Birkin bag, the Burberry checkered scarf, the Lady Dior handbag). Patents, on the other hand, are costly and too time-consuming (due to its slow application process) to obtain. The inherent incompatibility makes it so that designer brands rarely apply for patents.
One current issue in fashion IP law occurs in many new emerging “fast” fashion brands, such as Shein and Zara.[25] These brands reproduce cheaper versions designs from larger and more expensive brand names (for example, Zara’s dress pieces that resembled new season Miu Miu designs).[26] “Fast” fashion is thus frequently accused of copying high-end designer styles that hit close to copyright and trademark infringement.[27] For example, H&M has filed a lawsuit against Shein for IP infringement in Hong Kong; the latter company’s “first line of defense” to IP infringement is supposedly “removing the product from its sites and blaming the misconduct on another…actor.”[28] The issue here is that the replicas are not exact copies but closely resemble the designs, and because copyright law does not cover clothing silhouettes, luxury designers struggle to take legal action.
Another issue is when fashion becomes associated with culture appropriation and IP theft. Major fashion brands have faced backlash for appropriating traditional designs from other cultures and marginalized communities.[29] For example, Yves Saint Laurent dedicated the Spring-Summer 1967 collection to Africa, reinterpreting the African artisanal techniques in his gown designs; Christian Dior, under the direction of John Galliano, presented a Geisha-inspired makeup on the 2007 Haute Couture catwalk; more recently, Jean Paul Gautier took inspiration from the Andean cultures and presented sombreros and mariachis trousers in the 2010 Spring/Summer collection.[30] These instances highlight the tension between IP protections and traditional cultures, further pushing the boundaries of whether and to what extent legal frameworks should restrict uses of fashion designs.
In general, IP protections in fashion rely on trademark law and a limited extent of copyright. While the protection is not as clearly set as other kinds of IP, the overall understanding reflects the accepted principles in trademark, such that the more goodwill a company has (i.e., the morea design is recognizably associated with a certain brand) the easier it is to make a claim against infringements.
[1] Rachel Kim, “How Is Fashion Protected by Copyright Law?” (2022) online: <https://copyrightalliance.org/is-fashion-protected-by-copyright-law/>, retrieved on 2025-03-21.
[2] Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. 405 (2017).
[3] Ibid.
[4] Copperpod, “Intellectual Property for Fashion Industry: Trademarks” (2024), Copperpod Intellectual Property, online: <https://www.copperpodip.com/post/intellectual-property-for-fashion-industry-trademarks>, retrieved on 2025-03-21.
[5] Ibid.
[6] Sofia Quintero, “Louis Vuitton, Takashi Murakami, and Their Enduring Collaboration” (2025), Culture Lounge, online: <https://www.assouline.com/blogs/culture-lounge/louis-vuitton-and-takashi-murakami-a-decade-long-collaboration> retrieved on 2025-03-24.
[7] Ibid.
[8] Harper Johnson, “Case Review: Hermès International v. Rothschild” (2024) Center for art law, online: <https://itsartlaw.org/2024/05/07/case-review-hermes-v-rothschild/>, retrieved on 2025-03-24.
[9] Ibid.
[10] Ibid.
[11] Tiffany & Co. “Tiffany Blue,” online: <https://press.tiffany.com/our-story/tiffany-blue/#:~:text=Since%201998%2C%20Tiffany%20Blue%C2%AE,remains%20consistent%20and%20instantly%20recognizable.>, retrieved on 2025-03-24.
[12] Ibid.
[13] Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).
[14] Ibid.
[15] Christian Louboutin S.A. v. Yves Saint Laurent America Inc., No. 11-3303 (2d Cir. 2012).
[16] Ibid.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] He Wei and Wen Cui, “Design of Hermès’ iconic Birkin and Kelly bags held to constitute ‘trade dress with a certain influence'” (2024), online: <https://www.worldtrademarkreview.com/article/design-of-hermes-iconic-birkin-and-kelly-bags-held-constitute-trade-dress-certain-influence>, retrieved on 2025-04-01.
[21] International Trademark Association, “Trade Dress,” online: <https://www.inta.org/topics/trade-dress/#:~:text=What%20Is%20Trade%20Dress?,afford%20protection%20to%20trade%20dress.&text=We%20support%20the%20position%20that,recognition%2C%20registration%2C%20and%20protection.>, retrieved on 2025-04-01.
[22] Ibid.
[23] Irene Calboli and Eleonora Rosati, “Design Patents in the Fashion Industry: A U.S. Perspective” (2024) Oxford University Press, Forth Coming, Texas A&M University School of Law Legal Studies Research Paper No.24-24, DOI: <http://dx.doi.org/10.2139/ssrn.4663112>.
[24] Ibid.
[25] Mark K Brewer, “Slow Fashion in a Fast Fashion World: Promoting Sustainability and Responsibility” (2019) 8-4 Laws | An Open Access Journal from MDPI, 2019 CanLIIDocs 3767, <https://canlii.ca/t/sptp>.
[26] Ibid at 3.
[27] Ibid at 4.
[28] Meredith Clark, “H&M sues fast fashion retailer Shein for copying its designs” (2023), online: <https://www.independent.co.uk/life-style/fashion/hm-suing-shein-copyright-infringement-b2382001.html>, retrieved on 2025-04-15.
[29] Barbara Pozzo, “Fashion between Inspiration and Appropriation” (2020) 9-1 Laws | An Open Access Journal from MDPI, 2020 CanLIIDocs 3587, <https://canlii.ca/t/t22c>.
[30] Ibid at 6–9.
Copyright & Social Media
Communications Law