French Fashion Industry Eyes Ways To Better Use IP Rights For Protection

PARIS – Fashion industry representatives and others in France are mulling ways to use the intellectual property system more effectively to protect innovations in fashion, with the support of the French government.

On 26 November, the French “Institut de Recherche en Propriété Intellectuelle” (Paris Ile-de-France Chamber of Commerce and Industry) held the conference “Les Propriétés Intellectuelles à la Mode” to discuss luxury and fashion intellectual property rights.

French academics, lawyers, industry and government representatives addressed specifics of IP protection and enforcement, including the comparison of non-registered designs vis-à-vis French copyrights. Lawyers appraised IP protection and enforcement before French courts.

In addition, industry and government delegates stressed the importance of the French fashion and luxury industries for the country, citing estimated annual revenues of approximately 130 billion euros.

From the perspective of the French Union of Textile Industries, Emmanuelle Butaud-Stubbs, Executive Officer gave her view concerning intelligent textiles in relation to IP rights in the session entitled, “Quelle protection pour les articles de mode avec dépôt?” (What protection for products with a title?).

Intelligent textiles are innovative fabrics containing information and communication technologies applied across sectors, such as sports, health, aeronautics and food packaging. For instance, Butaud-Stubbs cited the wearable D-Shirt of Cityzen Science is made of intelligent textiles.

Butaud-Stubbs also highlighted the three objectives included in the French industrial plan concerning technical and intelligent textiles, namely:

• Achieve success in the environmental transition
• Explore the available opportunities of the digital revolution and nanotechnologies
• Develop the textile industry of the future using new technologies, such as 3D printing

With regard to IP rights, intelligent fabrics can involve aggregate protection at an international level: patents, models and designs, Butaud-Stubbs explained. Besides, IP management ensues from innovative collaboration projects “sponsored by poles of competitiveness, and research centres in France and in the EU by the Textile and Clothing Technology Platform.” As to future challenges, she foresees the problem of regulating transfer of health data, medical and textile devices and 3D printing.

In another session, “Quelle protection pour les articles de mode sans dépôt?” (What protection for the products without a title?), Emmanuelle Hoffman, partner at Cabinet Hoffman, a firm specialized in IP fashion law, analysed the right to accumulate French copyrights and unregistered community design rights. She told Intellectual Property Watch the following:

“In France, a non-registered creation can benefit from a double protection, on the one hand by the copyright law (Copyright being free of registration) and by the design law (Unregistered Community Design Rights called DMCNE in French (Dessin et Modèle Communautaire Non Enregistré), in an alternative or a cumulative way. These protections are confirmed on a judicial level, no administrative office having jurisdiction over these questions.”

Hoffman, as a practitioner, also said:

[She] “recommend[s] the simultaneous invocation of both protections before the courts” [despite challenges to prove ownership of copyrights and criticisms against protecting one object/ creation under several IP rights] …. as it allows to hold the existence of several damages, thus favoring the holders of IP rights. Another advantage, [she highlighted] is that the assessment methods are harmonized for each category of IP rights, meaning that cumulative damages can thus be granted on the basis of the same elements and evidences produced by the claimant.”

In the same session, Michel Friocourt, Kering Group CEO advisor, narrated the difficulties to prove French copyrights for fashion products before a French court. (Kering Group holds a number of luxurious and fashion brands known worldwide, including Gucci, Alexander McQueen, Stella McCartney, Bottega Veneta and Boucheron.)

Friocourt stated the notion of originality in French copyright is based on a deduction as the court decides on a case-by-case basis whether a work carries the imprint of the personality of its author. See for instance the Cass. com., 20 March 2014, Tod’s Spa and Tod’s France c François Pinet qnd Orphée Club, (12-15.518)

Therefore, it can be unavoidably challenging to prove originality in view of outside actors in the supply chain, he said. In practice, Friocourt infers it is almost undoable to acquire accumulation of copyrights and non-registered designs to protect fashion products, but perhaps still possible for jewellery and haute-couture creations. He said:

“If the current French law accepts to combine the double protection of copyright and non-registered community designs, this accretion causes two distinct and cumulative compensations, while at the same time, in the field of fashion, the same jurisprudence has become exceedingly difficult to prove originality of the author’s creative effort in relation to the grant of copyright protection. [I]t seems to me that this dual protection is excessive or unnecessary, and that the regime of the model should be the general norm, [and] copyright, non-cumulative, the exception.”

In the session “Quelle protection dans un monde globalisé?” (What protection in a globalized world?) presenters tackled IP protection at a global level and online. Alain Coblence, partner at Coblence & Associates focused his presentation on comparing fashion design protection in Europe and US since European designs are neither protected by design nor by copyrights in the US. From the online standpoint, Charlotte Paoli, senior IP legal manager – global brand relations at eBay declared that eBay complies with IP protection, notably with its program Verified Rights Owner (VeRO) which removes listings infringing third parties’ IP rights within two hours, and that it cooperates with right holders.

In relation to the matter of infringement, on 3 December, French and Italian industry delegates signed a memorandum of understanding quoting six priorities that aim at protecting fashion and textile creation at a national and European level, as follows:

• Reinforcement of controls and provisions to fight against counterfeits
• Make it more efficient legal decisions
• Inform consumers
• Adapt legal tools to the digital world
• Intensify the cooperation between competent authorities in the European Union
• Implement a proactive policy of defence of IP rights vis-à-vis third countries

 

Image Credits: Magda Voltolini