Needles & stitches: understanding the Nigerian intellectual property rights in fashion law

The fashion industry comprises a wide range of activities from the conception of a product to design to manufacture, as well as marketing and selling. For lawyers within the Intellectual property space, it involves the procurement of IP rights; including trademarks, copyrights, and patents – and the global licensing and subsequent enforcement of those rights. Understandably, in a world more concerned with the aesthetics and the rewarding economic potentials of creating a lucrative fashion line/brand, little, if any, attention is paid to protecting the designs that have become the hallmarks of the burgeoning fashion brands all over the world. Fashion lawyers work on anything from intellectual property – trademarks, brands, designs, and copyright – to contracts, employment law and distribution agreements. Some shops and labels have their in-house teams, others outsource to legal firms.[1]

The fashion industry remains an interesting medley of intellectual property practice.[2] Fashion law applies to apparel, footwear, and even accessories. This emerging field of practice covers areas such as copyright, trademarks, service markers, utility patents, design patents, counterfeits, trade secrets, licensing agreements, advertising and publicity at every stage of the fashion business. It is believed that globally the fashion industry generates more than USD 2 trillion annually.[3]

Over the last 10–20 years, the rise of the Internet changed the marketing and distribution of products. The introduction of social media created a new world for advertising and distribution and has played a role in the rapid rising and falling in popularity of many brands. Social media has also helped foster co-branding and endorsement opportunities between fashion brands and celebrities or other social media personalities, which has the benefit of allowing all parties to draw from larger public audiences. These new developments in advertising and media strategy have led to the emergence of new legal intricacies that have helped develop ‘fashion law’ into its niche practice area.

Fashion labels and brands have become more protective of their intellectual property rights. This consciousness is undoubtedly more pronounced in Europe and North America. Sub-saharan Africa and Nigeria, in particular, are still playing catch-up. The fashion industry in most parts of Nigeria and sub-Saharan Africa involves a lot of innovation and creation so much so that the owners of the labels give a second thought to the issues of intellectual property protection. Intellectual property laws protect fashion brands and certain elements of fashion designs themselves, and the industry has recently seen increasing use of design patents and trademarks to protect their intellectual property rights. These types of IP vehicles protect the ‘look’ of a particular product or certain novel design elements of such a product. An example of a design patent might be an ornamental sculptural element, such as an intricate bow, affixed to a product such as a shoe or a distinctive colour scheme that appears on a particular brand’s products and creates an association between that colour scheme and the brand.[4] The growing focus on these two areas of intellectual property protection may be happening because the other avenues, such as utility patents, trademarks, and copyrights, are not always sufficient to prevent infringement. The case of Star Athletic, LLC v Varsity Brands, Inc was a landmark case that went before the United States Supreme Court in 2017.[5] The case centered on the protectability of cheerleading uniforms. Specifically, it examined whether certain creative elements of the design of a cheerleader’s uniform – such as the stripes of a chevron – could be protected under US copyright law. In other words, could these elements be separated specifically or conceptually without taking away the purpose of the design, namely to be a cheerleading uniform?[6]

In its decision, the Supreme Court clarified the standard for separability, saying that, in general terms, certain creative elements – whether two-dimensional or three-dimensional – of a garment may be protected by copyright law. However, it refused to speak to the protectability of, or the level of creativity inherent in, the specific uniforms in question.

The case has to go back to the lower court to determine whether the cheerleading elements were sufficiently original to warrant protection. While it is not yet clear what the practical impact of the decision will be on the US fashion industry, it does offer designers some hope of being able to use copyright law to make a case for defending at least some creative aspects of their garments.[7]