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New IP issues facing the fashion industry
The leader of the intellectual property (IP) practice at a BigLaw firm outlines the new issues and trends faced by the fashion industry.
Jess Feyder
Jonathan Feder leads the intellectual property (IP) practice at K&L Gates. A number of the firm’s offices focus on the fashion and luxury goods industry, so they hold a broad picture of the issues faced internationally.
Around the globe, one of the biggest issues facing clients is that products are being copied, from fabric prints to product designs and names, Mr Feder highlighted.
The rise of fast fashion companies like Shein, eBay and Zara has led to products being copied and sold at lower prices, Mr Feder noted.
The internet is posing some new and unique challenges to IP in fashion, Mr Feder explained.
A new trend being seen is online scams, noted Mr Feder. Scammers are setting up websites that mimic those of the fashion houses, making them look like websites where consumers can buy products, he explained.
Consumers then go on those websites and “buy” products for lower prices and are scammed for their money.
It’s about responding and shutting down those websites to protect consumers and the brand, Mr Feder explained.
There is also a unique issue being seen in relation to how influencers — people that advertise items on social media — are transparent about advertising products, Mr Feder noted.
Government agencies are increasingly cracking down on influencers and wanting them to clearly disclose if they are being paid to promote or endorse products, he explained.
This is because consumers are sometimes being misled or deceived into thinking people are promoting something because they like a product, he said.
“There’s been an amping up of laws on an international basis around that kind of conduct,” Mr Feder added.
“There was a recent case in New York regarding the reproduction of products in the metaverse.”
In this case, a Birkin bag — an expensive bag often showcased by celebrities — was reproduced in the metaverse. The courts ruled to stop the conduct.
This has led to the issue rising of how companies protect their property in the digital landscape — in response, they are employing unique strategies like the use of non-fungible tokens (NFTs).
As the nature of cases is changing alongside new technologies, laws are having to be applied differently in order to cover these new cases, Mr Feder continued.
“IP laws were not written for these kinds of technologies. The courts have had to adapt, and clients have had to adapt, in order to enforce their rights in the online space,” he said.
“I think we’re going to see a flurry of these kinds of cases where products are being used in the metaverse,” he posited.
“There’s going to be many more cases, especially when fashion brands are turning to the metaverse in order to promote their products and their brands.”
This will mean that IP lawyers will need to figure out how to use the laws we currently have to craft arguments in order to stop that kind of conduct, he noted.
