Protecting Creativity in Fashion Design : Us Laws, Eu Design Rights, and Other Dimensions of Protection

Exploring the debate over the benefits of legal protection for fashion design, this book focuses on how a combination of minimal legal protections for design, evolving social norms, digital technology, and market forces can promote innovation and creativity in a business known for its fast-paced remixing and borrowing. Focusing on the advantages and disadvantages of the main US and EU IP laws that protect fashion design in the world’s biggest fashion markets, it describes how recent US case law in copyright and trademark cases has led to misaligned incentives for the industry and a lack of clear protection, while, in the EU, the CJEU’s interpretation of the pan-European design rights system has created significant overlap with copyright law and risks, leading to the overprotection of design. The book proposes that creativity and innovation in fashion derive some benefit from a limited unregistered design right protection, and that cumulation with copyright protection is unhelpful. It also proposes that there is a larger role for developing social norms relating to sustainability, the ethics of cultural appropriation, and the online shaming of counterfeiters that can also help create a fair equilibrium between protection and borrowing in fashion design.

Susanna Monseau is a Professor at the College of New Jersey. Before becoming an academic, she was as an intellectual property litigator at law firms in London, UK, and Philadelphia and Princeton, US. Her research interests relate to the role of US and European intellectual property laws in technology and fashion. Her scholarship has been published in a range of law journals. She has also written a book, Law, Technology, and the Future of Business. Ms. Monseau received a Fulbright award for 2022–23 to conduct research in Finland on how intellectual property laws can help create a more sustainable textiles industry.