Fashion Design : Property View of Fashion Design

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Fashion Design
  Is fashion design property? We mentioned the fashion industry is a profitable business, which annually earns hundreds of billions of dollars. However, such fact cannot directly prove that fashion design is property. Property is considered the most fundamental of real rights; an owner of a property has a right to use, benefit, transfer or sell the property, and a right to exclude others from doing these things to the property. Property implies the right to complete control of the good. Property rights are not defined as relations between men and things, but behavioural relations among men that arise from the existence of things. The property right is the set of economic and social relations with respect to the utilization of scarce resources. So here comes the question, are fashion design scarce resources which need to be protected as the property right?

  Scarcity is explicitly the rationale for modern law and economics. Scarcity is a problem generated between unlimited human wants and limited resources. There are two kinds of scarcity: natural scarcity and artificial scarcity . Nowadays, people need almost uninterrupted new fashion design. Meanwhile, there are a limited number of designers could spend limited time and mental works to create limited new fashion design. There is an artificial scarcity that exists in the  fashion design.

Intellectual Property View of Fashion Design

  Intellectual rights have to be qualified as property rights. There is a core similarity between physical property and intellectual property—the attempt to use a legally created privilege to solve a potential public goods problem. But not all the intellectual property rights are treated as property rights. In spite of the fact that fashion design is property, this cannot directly result in that fashion design is intellectual property rights. Some scholars argue that fashion design is an art and the IP protection it deserves is long overdue. However, some other scholars argue that fashion design need not to be protected. Does fashion design belong to the subject matter of intellectual property rights?

  The U.S. Constitution states that “[T]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Actually, the scope of the “science and useful arts” is pretty vague. Moreover, the level of creation is pretty vague. Here we say fashion design is not belongs to the intellectual property mainly because fashion design fall between the seams of traditional intellectual property protections. Therefore, we don’t say fashion design is not an intellectual property right, but currently, fashion design literally cannot be protected under the intellectual property legal system.

  Although Copyright can protect fashion design from directly copying from others, copyright merely protects the expressions instead of ideas and functionality of creations. To fashion design, the artistic form cannot separate from the functionality. Therefore, copyright can merely protect some elements of fashion design and copyright cannot protect fashion design itself. Design patents seemingly fit the background of fashion design. Moreover, design patent offers a broader scope of protection if the patent is issued. However, fashion design hardly meets the “novelty” and “non-obviousness” prerequisite of a design patent as the creativity of fashion design is lower than the requirements of patents. Moreover, design patents protect the appearance of an invention instead of the functionality. As mentioned before, the absence of separability of fashion design leads to the absence of patent protection. Trade dress under trademark law seemingly another good way to protect fashion design, but firstly, there is still a separability requirements for trade dress. Secondly, despite the fact that some appearance of fashion design can separate from functionality, in order to be protected as trade dress, the owner of fashion design should prove the fashion design acquires the Secondary Meaning. Since fashion design is a short-life product, it hardly meets the secondary meaning requirement, except for a few large fashion manufactures like Louis Vuitton, Gucci, or Prada.

  Intellectual property rights do not protect a factual and physical control on ideas but rather the monopoly of natural ownership of the owners prevented this monopoly. In recent years, the scope of intellectual property protection has expanded greatly in a variety of fields. Patents now are granted over plants and software, even business methods. Copyright terms have been extended to life plus 70 years – far longer than the 14-year term originally contemplated by the drafters of the Constitution. Software could be registered and protected under copyright as a new intellectual property rights. Should fashion design be saved from the seams between traditional IP protections? Should fashion design be protected under intellectual property law as a new kind of rights? According to the “labor-dessert” theory, the answer is yes because fashion design is valuable human creations, and because currently the valuable creations are suffering from an irreparable harm.

  Do protection created value or do value created protection? This is like a chicken and egg problem under Intellectual property rights. The protection of fashion design will protects the existed value of fashion design or leads to adding broader monopoly power to the fashion manufacturers? This question leads to the scope of the protection of fashion design, but not the existence of the protection of fashion design.


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