Part I

In ‘Fashion, Post-postmodernism and Intellectual Property’, David Tan discusses how fashion – the way we dress – is often an important reflection of the zeitgeist or the spirit of a given point and place in time. He contends that the fashion phenomena of recent years, such as self-disruption, upcycling and phygital experiences, can be studied as characteristics of a post-postmodern condition where a new cultural paradigm has emerged. The term post-postmodern has appeared in an increasing number of scholarly works that address a new cultural milieu – one that faces shifting global political centres and geopolitical boundaries, threats of climate change and an endangered ecosystem, destabilisation from armed conflicts and pandemics, obsessions with autonomous individuality, accelerating advances in artificial intelligence and the pervasiveness of information and communications technology in our daily lives. This chapter explores how such theories may be relevant to understanding contemporary fashion trends and their implications for intellectual property laws.

Barton Beebe, in ‘Intellectual Property Law and the Dream of Post-scarcity Society’, explains that luxury fashion seeks to aestheticize scarcity and transform its possession into a sign of social distinction. Intellectual property law plays a crucial role in this process. In this chapter, he considers the social function that intellectual property law may continue to play in a purportedly ‘post-scarcity’ society of the future, asserting that though intellectual property law has long played a technologically progressive role in modern societies, its social function in such societies has been and will continue to be largely reactionary. Even in an otherwise post-scarcity society, intellectual property law will be used, as it is already being used, to preserve ‘social scarcity’ and regulate signs of social distinction.

Part II

In ‘Fashion’s Function in Intellectual Property Law’, Christopher Buccafusco and Jeanne C Fromer make the point that clothing designs can be beautiful, but they are also functional. Indeed, fashion’s dual nature sits uneasily in intellectual property law, and its treatment by copyright, trademark and design patent laws has often been perplexing. Much of this difficulty arises from an unclear understanding of the nature of functionality in fashion design. This chapter argues that aspects of garment designs are functional not only when they affect the physical or technological performance of a garment but also when they affect the perception of the wearer’s body. Generally, clothes are not designed or chosen simply to look good. They are also characteristically designed or chosen to look good on. This approach clarifies the appropriate treatment of fashion design in intellectual property, and it exposes the conceptual limitations of the US Supreme Court’s copyright decision in Star Athletica, L.L.C. v. Varsity Brands, Inc.

Vicki Huang, in her chapter ‘Shape Trademarks Are in Fashion: A Study of Footwear and Sneakers in Australia’, confronts one of the most significant sartorial transformations in recent history – the evolution of the sneaker from sports equipment to high-end fashion. Expanding demand and competition in the sneaker market (primarily driven by renewed interest in fashion by men) has meant designers are seeking more ways to protect the overall appearance of their shoe designs. This chapter demonstrates that empirically, the sneaker revolution has increased demand for Australian 3D shape trademarks as an adjunct to, or replacement for, registered design rights. It presents this trend as a cautionary tale for those who might call for a sui generis design right for fashion. Ultimately, the failed demand for Australian design rights appears to stem from failing to consider aspects of culture, commerce and the matrix of related rights, particularly trademark rights.

In ‘Non-traditional Trademarks, Distinctiveness and the Fashion Industry’, Susanna Leong and Irene Calboli analyse the use of non-traditional trademarks (NTTMs) in the fashion industry. With reference to selected cases in the United States, the European Union and Singapore, the authors study the arguments for and against the protection of these signs as trademarks, as well as the appropriate test for the evaluation of distinctiveness. Although some fashion designers and enterprises have celebrated victories in court, it has been widely noted that the registration and protection of these NTTMs can be problematic and potentially detrimental to innovation in the fashion industry. The authors also critically examine the different tests of ‘association’ and ‘reliance’ as discussed in recent court decisions on acquired distinctiveness of NTTMs and conclude with a recommendation that the ‘reliance’ test is the preferred test.

Roger Allan Ford in ‘Utility Patents and the Fashion Industry’ reviews the fashion industry’s uses of utility patents. The chapter first provides an overview of the fashion industry’s patenting activities, looking at how many patents are granted for fashion-related inventions and how large apparel companies obtain those patents. It then examines companies’ use of patents, looking at how patent litigation in the fashion industry compares to other industries. Finally, it turns to the uneasy tension in fashion between function and aesthetics, examining the specific technologies and inventions being claimed in fashion patents to see what can be inferred about the relationship between fashion and intellectual property.

Working from the premises that fashion designers ought to enjoy some form of intellectual property protection over their creations and that they benefit from such protection, Robert Burrell and Emily Hudson in ‘Barriers to Enforcing Design Rights over Fashion in the United Kingdom’ explore the problems that fashion designers are likely to face when seeking to enforce their rights in the United Kingdom. Like other commentators, they conclude that design laws in the United Kingdom are in need of reform. They also demonstrate that Brexit has made the problems faced by designers worse, without necessarily creating the policy space for meaningful national reform. The consequence is that designers are likely to rely even more heavily on the copyright system, but this merely shifts the tensions of Brexit from the legislative and political realms to the judicial realm.

Part III

Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can transform used pieces of clothing into new fashion products that may become even more sought-after than the source material. Martin Senftleben, in his chapter ‘Fashion Upcycling and Trademark Infringement: A Circular Economy/Freedom of the Arts Approach’, tackles how upcycling may trigger allegations of consumer confusion and unfair freeriding when fashion elements bearing third-party brand insignia become components of the upcycled product. Considering the overarching policy objective to ensure a circular economy, the use of trademark-protected fashion elements for upcycling purpose can be qualified as a particularly important form of artistic expression. The chapter concludes that the referential use defence in the European Union can be invoked successfully to rebut infringement arguments – regardless of whether these arguments are based on confusion, blurring, tarnishment or unfair freeriding.

Since the 2000s, Chinese factories have been notorious for imitating and copying luxury fashion designs, a phenomenon known as shanzhai. In their chapter ‘Shanzhai Fashion and Intellectual Property in China’, Jyh-An Lee and Jingwen Liu explain that within the fashion industry, two primary categories of shanzhai practices exist: the imitation or copying of a brand’s name or trademarks, referred to as ‘counterfeits’, and the imitation or copying of a brand’s designs, referred to as ‘knockoffs’. While brand owners can easily enforce their legal rights against the trademark-infringing counterfeits, knockoffs remain a significant concern for international brand owners, since these design features are frequently denied trademark protection. The authors contend that recent judicial practices suggest that fashion designs and design features in China can be protected under the Anti-Unfair Competition Law. Moreover, Chinese courts are increasingly open to the registration of signature design patterns NTTMs, including three-dimensional trademarks and colour trademarks. This chapter provides a comprehensive exploration of China’s evolving approach to these issues and provides a detailed comparison of copyright, trademark, design patent and unfair competition protections against fashion copycats.

Part IV

Dev S Gangjee, in ‘Threads That Last: Geographical Indications for Textiles’, investigates the potential use of geographical indications (GIs) for both increased visibility and as an effective legal regime to protect a hard-earned reputation for traditional crafts and textiles. He argues that supporting traditional textiles through this form of IP has additional synergies with the shift towards more sustainable production and consumption in the global fashion industry. By utilising natural fibres, organic dyes, artisanal modes of production and fabrics intended to be worn multiple times, GIs can be positioned as the polar opposite of fast fashion; as ‘threads that last’. However, the methods for legally ‘locking in’ sustainability commitments are still being developed, while there are countervailing economic pressures to ‘backslide’ on sustainable modes of production.

In ‘Culture and Cosmopolitanism in the Global Fashion Industry’, Kal Raustiala and Christopher Jon Sprigman posit that the global fashion industry is increasingly subject to accusations of cultural appropriation. Their chapter analyses why the fashion industry’s practices – in particular, its mashup-magpie mode of creativity and its rapid innovation cycle – make it a frequent target of these claims. They explain the challenges to legal protection for cultural designs, explore and critique the normative case for property claims in traditional cultural designs and offer a qualified defence of the industry’s practice of re-interpreting those designs. The authors suggest that many designs seen as originating in a particular culture have roots that extend outward to other cultures; this network of cultural interchange often undermines any particular ownership claim. And while appropriation can signal disrespect for source cultures and be objectionable for that reason, appropriation is not disrespectful per se, as there are strong normative arguments supporting many instances of appropriation.

We would like to express our appreciation for the generous funding extended to this book project by the EW Barker Centre for Law & Business at the Faculty of Law, National University of Singapore (NUS Law), which enabled chapter authors to meet in Singapore for a roundtable discussion in 2023, as well as the efforts of lead student editor Muzainy Shahiefisally and student editor Ciara Oleary at NUS Law. We would also like to record our thanks to the artist Andre Tan who allowed us to use his extraordinary artwork for the cover of this book.

We hope you will enjoy this meticulously curated collection of essays and, even as fashions change and new styles emerge, we trust that they will remain a fashionable read in the years to come.