In recent years, fashion law has emerged as a dynamic area of legal practice. Despite multiple legal branches having influenced the fashion industry for decades, legal scholarship was slower in adopting an interest in fashion, usually treating fashion law as a subfield of intellectual property (IP).  

As defined by the Fashion Law Institute at Fordham University in New York, fashion law presents the legal substance of style, including all the issues that may arise through the life of a garment, starting with the designer’s original idea and continuing all the way to the consumer’s closet. 

While the IP might be the fashion law’s signature look, this field consists of a wider variety of legal issues as well as business and ethical elements that underpin legal developments. The term was coined by Professor Susan Scafidi who considered four main pillars of fashion law- intellectual property, business and finance; international commerce and governmental regulation; safety and sustainability; consumer culture and civil rights. 

The importance of IP protection and relevant case law 

Intellectual property (IP) law is one of the main elements of the fashion industry’s legal structure. Divergent types of IP rights may apply to products in the fashion industry, from copyright over registered and unregistered design to trademarks and trade secrets. The majority of IP rights can be employed to safeguard facets of products at different life cycle phases, 

Let’s take a look at several cases. For example, in the trademark dispute between the singer Katy Perry and Australian fashion designer Katie Taylor in the case Taylor v Killer Queen LLC (No 5) (2023) FCA 364, the Full Federal Court has overturned the first instance decision. Katy Perry relied on the defense for using her name in good faith. The Full Federal Court ordered the cancellation of Taylor’s Katie Perry mark on two bases- that Perry had a reputation at the time Taylor’s application was originally filed such that consumer confusion was likely to happen, and that Taylor was aware of Perry’s international reputation at the time of filing the application.  

In 2024, Chanel succeeded in a six-year-long legal process against the luxury reseller What Goes Around Comes Around. The trademark infringement case was first filed in 2018 by the French fashion house, and in 2024 a New York jury voted in favor on all four counts- trademark infringement and unfair competition based on a false association; trademark infringement based on the sale of infringing Chanel branded products and the use of various hashtags; sale of counterfeit Chanel branded products; and false advertising (Chanel, Inc. v. What Comes Around Goes Around LLC, 1:18-cv-02253, (S.D.N.Y.)) 

Back in 2022, the Italian Supreme Court issued a decision on the protection of the shape of the Hermès ‘Birkin’ and ‘Kelly’ handbags as three-dimensional trademarks (the Birkin and Kelly handbags have gained widespread popularity and a reputation as a highly sought good due to their lenghty waiting lists, craftmanship and high prices). In this case,Hermès International s.c.p.a. & Co. (Hermès) argued that a company called Buti di Buti Amerigo & C s.a.s. & Co. (Buti) was a company attempting to market unauthorized copies of Hermes Kelly and Birkin bags. The Italian Supreme Court annulled the decision of the lower courts on two grounds; the Supreme Cort disagreed with the reasoning of the Court of Appeal and stated that registered trademarks have a presumption of distinctiveness, adding that it is up to whoever claimed their nullity to demonstrate that they don’t meet the distinctive requirements. Secondly, the Italian Supreme Court disagreed with the opinion of the lower courts stating that there was an absence of distinctive character in these goods since they have failed to explain why the shapes featuring the models of the goods were stripped of distinctiveness. Additionally, the Supreme Court specified that the assessment of secondary meaning can be made through opinion polls obtained ex officio by the judge through a technical consultancy, but since they are not binding, it is up to the judge to evaluate other traits, such as the unconventional character of the trademark. 

In its judgment Prev. 265/15, the Supreme Court of Cassation of Serbia established that a well-known trademark is a mark that is unquestionably recognized among participants in the market in the Republic of Serbia as a sign of high reputation and, as such, enjoys extended protection—meaning protection for all goods and services, not just those for which it is registered. When determining whether a trademark is well-known, the awareness of the relevant public is taken into account, including recognition gained through the promotion of the mark. The relevant public includes potential consumers of the goods or services marked by the trademark, as well as individuals involved in the distribution channels of those goods or services. 

Well-known trademarks enjoy extended protection to prevent dilution of the mark. By using highly similar signs in its name and on its premises—signs that clearly evoke associations with the plaintiff’s well-known trademarks—the defendant unfairly benefited from the reputation established by the plaintiff. 

The necessity of contracts 

It goes without saying the lifecycle of any product within the fashion industry needs to be accompanies with an extensive set of agreements concluded between all participants and intermediaries (from designers and vendors to marketing, outsourcing and e-commerce intermediaries). 

One way to overcome legal challenges in the fashion world is by using clear contracts that define terms both sides agree on. A good example is franchising, which has played a major role in helping fashion brands expand and grow their businesses globally, just as it has in other industries. This has resulted in a bigger implementation of franchise agreements including relevant non-compete clauses. To learn more about franchise agreements, take a look at this article: Key considerations when drafting a franchise agreement. 

Here’s another example—today, digital marketing by social media influencers is more common than ever. To ensure legal protection, parties can use what are known as influencer agreements. If you’re interested in finding out more about influencer contracts, take a look at this article: Influencer contract- What, how, why?. 

As mentioned, most of these agreements with intermediaries include non-compete clauses or exclusivity clauses- while drafting these clauses, it is important not to overlook compliance with relevant legislation. 

Sustainability requirements 

The product design stage refers to the stage where all necessary components are selected (e.g. material, dye)- this is also the point in time where a manufacturer is able to make environmentally conscious decisions regarding the environmental impact of the product. For example, the EU’s Eco-design for Sustainable Products Regulations (the ESPR) came into force in 2024. The novel regulation applies to those that sell, supply or distribute products into the EU as well as online retailers offering products for sale in the EU.  

Looking from the supply chain perspective, the main piece of legislation coming out of the EU is the new Corporate Sustainability Directive (the CSDDD) that mandates companies to conduct human rights and environmental due diligence on their operations as well as report on their efforts. The scope of this Directive includes large EU companies as well as non-EU companies conducting significant business within the EU. The due diligence will need to be on a continuing basis and monitored regularly as well as risk-based (the need to identify and address the most severe risks appropriately). 

For more information, read this article: ESG standards in 2024- What’s happening? 

Consumer protection 

Compliance with consumer protection laws is an essential element. Consumer protection laws mandate products to meet safety standards to safeguard consumers from harm as well as provide clear return and refund policies. 

On the other hand, brands need to comply with advertising obligations to prevent false or misleading claims about their products. The intersection of consumer protection and fashion law highlights the need for strict regulatory compliance. For example, misleading endorsements through social media channels could result in legal repercussions.  

The role of data protection in the fashion industry 

The fashion industry relies on consumer data for marketing purposes; thereby, a need for strict data protection measures is present. The General Data Protection Regulation applies to companies within the EU, and those that target EU consumers, while in Serbia the Data Protection Act governs the collection and use of personal information. 

For fashion companies data protection compliance is critical, especially when it comes down to using customer data for marketing purposes. Apart from the need for obtaining informed consent before collecting data, individuals have certain rights prescribed by data protection regulations.Failure to comply with data protection regulations can result in severe penalties. 

For example, back in 2020, the fashion company H&M was fined $35.3 million by the Hamburg Commissioner for Data Protection and Freedom of Information for violating the GDPR in a case involving the mishandling of employee data. The investigation revealed that the company breached several principles such as informed consent, excessive data collection and lack of data protection.  

A foray into blockchain technology 

Counterfeiting remains a major issue in the fashion industry, with fake products saturating markets. Blockchain offers a solution by verifying authenticity and securing product identity. In 2023, Dior launched B33 sneakers, each paired with an NFT on Ethereum. These NFTs are linked to encrypted certificates of authenticity and production details. However, owning an NFT doesn’t always mean owning the actual item. In Dior’s case, the NFT represented the physical sneakers. Brands and consumers alike should carefully review terms before engaging with NFTs to understand what rights are actually transferred. 

Note: This text does not constitute legal advice but reflects the personal opinion of the author.