Authored By: Mary Tian
University College London
Abstract
The fashion industry is increasingly confronted by legal scrutiny for its environmental impact and its treatment of intellectual property. This article examines whether stronger environmental and intellectual property regulation can benefit not only consumers but also fashion designers. This essay uses qualitative legal analysis of legislation, case law, and academic scholarship to evaluate how legal gaps in intellectual property protection and environmental regulation buttress the growth of fast fashion and greenwashing. Extending from academics such as Julia Krzeminski’s work on fast fashion and design protection and recent literature on greenwashing litigation, this article argues that stronger environmental laws amalgamated with stricter intellectual property protections could reduce design piracy, slow unsustainable production cycles, and promote fair competition.
Introduction
The climate crisis deserves more urgency and attention than ever before. According to the IPCC Report (2023), immediate, rapid, and intensive reductions in greenhouse gas emissions across all sectors are necessary to secure a liveable future.1 Thus, it seems undeniable we must enact fast, efficient action across every industry. It is argued that the fashion industry is a ripe ground for implementing stricter environmental policy, composing 4–10% of total carbon emissions (more than all international flights and maritime shipping combined) and consuming 215 trillion litres of water annually, causing 20% of industrial wastewater pollution.2 Fashion is also a growing industry, with textile production increasing by 120% increase between 1975 and 2018, exemplifying a per capita fashion-consumption upsurge from 5.9 to 13 kilograms (kg).3
While it is acknowledged that there exist other industries contributing objectively higher proportions of carbon emissions like land use and fossil fuels, this article will focus on fashion environmental implications and its relationship with strengthening intellectual property protection laws in order to provide a legal incentive for increased environmental regulation beyond climate impacts.4 Fast fashion brands manufacture thousands of new clothing items each week, frenziedly copying trends and designs while relying on global supply chains that generate significant environmental damage. The legal structures governing intellectual property and environmental regulation often fail to adequately address these harms.
This article asks: why might stricter environmental laws and stronger intellectual property protections benefit not only consumers but also designers? While environmental regulation is typically approached as a consumer protection issue, its implications for designers, particularly those vulnerable to design piracy, are equally crucial.
This article proceeds in four sections. First, it outlines the international legal framework governing intellectual property and environmental regulation in fashion, followed by an examination of the weaknesses of current regulatory regimes in the United States and the United Kingdom. Third, it analyses relevant case law illustrating how courts protect fashion designs and trademarks. Finally, it evaluates policy gaps and argues that stricter environmental and intellectual property laws could simultaneously protect designers, consumers, and the environment.
Background and Conceptual Framework
The world is currently in an unprecedented phase, where our actions now will dictate what percentage of the population will be able to survive within the next century. Detrimental environmental impacts such as economic and infrastructure damage, changes in ecosystem structures, and water availability have already begun to increase in frequency and intensity, disproportionately affecting the most vulnerably positioned demographics.5 Thus, it is pertinent to take action in legal regulation and policy.
International Intellectual Property Framework
The global fashion industry is governed by an elaborate body of intellectual property treaties and domestic legal frameworks. The TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) establishes minimum standards for intellectual property protection among members of the World Trade Organisation.6 TRIPS requires states to provide protection for trademarks, patents, and industrial designs, although its provisions for design protection remain relatively flexible.
The Paris Convention for the Protection of Industrial Property provides foundational protections for trademarks, industrial designs, and patents, enabling designers to seek protection across multiple jurisdictions.7 Additionally, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty extend copyright protections to digital and creative works, an increasingly relevant issue as fashion design intersects with digital media and artificial intelligence.8 9
Despite these frameworks, the protection of fashion designs remains uneven across jurisdictions. In several countries, fashion designs are only partially protected through trademark, copyright, or design patent law.
Environmental Regulation in Fashion
In the United States, there is no comprehensive federal law regulating environmental claims in consumer products. Instead, the Federal Trade Commission’s Green Guides provide non-binding guidance for environmental marketing claims.10 However, these guidelines remain vague and fail to clearly define what constitutes “sustainability,” allowing companies to exploit ambiguous terminology in marketing campaigns.
In the United Kingdom, environmental claims in fashion are primarily regulated through consumer protection frameworks. The Competition and Markets Authority (CMA) and Advertising Standards Authority (ASA) have increasingly scrutinised greenwashing claims.11 The Digital Markets, Competition and Consumers Act 2024 strengthens enforcement by
allowing the CMA to impose fines of up to 10% of global turnover for misleading environmental claims.
Prior Scholarship
The work of other scholars on this topic will be drawn, largely from Julia Krzeminski and Kasey A. West. Krzeminski argues for enforcing intellectual property design protection and West advocates for greater enforcement in regulating greenwashing claims. Both authors affirm my argument, which goes further to compare international jurisdictions and additional regulating authorities.
Legal Analysis
Fast Fashion and the Limits of Intellectual Property Protection
Fast fashion companies heavily rely on the ability to replicate popular designs quickly and at exceedingly low costs. For example, companies like Zara, H&M, and Forever 21 use sophisticated supply chains to bring copies of designer clothing to market in as little as six weeks.12
This rapid replication is facilitated by the limited intellectual property protection available for fashion designs. In many jurisdictions, clothing designs are considered “useful articles,” making them difficult to protect under copyright law. While design patents can provide protection to an extent, they often require tiresome application processes and only give protection for up to fifteen years, which is much longer than the typical life cycle of fashion trends, rendering the patent practically useless.13 Consequently, designers often rely primarily on trademark protection for logos, monograms, and distinctive patterns instead of the clothing designs themselves.
Environmental Consequences of Fast Fashion
The legal gaps enabling fast fashion also have environmental implications. Fast fashion production relies on large-scale manufacturing, cheap materials, and short product lifecycles. These practices contribute to pollution, excessive textile waste, and the depletion of natural resources.14 Moreover, fast fashion’s rapid production cycles encourage consumers to treat clothing as disposable. Instead of purchasing fewer high-quality items, consumers are incentivised to buy large quantities of cheap clothing that end up deteriorating after a few washes, trapping them in a vicious cycle of buy more clothing. Environmental regulation alone has struggled to address these issues. For example, the Clean Air Act and Clean Water Act regulate industrial pollution but do not effectively target the textile supply chains that drive fast fashion production.15 16
Intellectual Property Reform as Environmental Regulation
One innovative proposal provided by Krzeminski is to address fast fashion’s environmental harm through intellectual property reform. She has suggested expanding the Vessel Hull Design Protection Act (VHDPA) to include protection for fashion designs.17 Originally enacted in response to design copying in the boat manufacturing industry, the VHDPA provides sui generis protection for vessel hull designs for up to ten years. Legislators have repeatedly proposed amendments to extend this framework to fashion designs. For example, the Design Piracy Prohibition Act (DPPA) would have provided three years of protection for registered fashion designs. The rationale behind such proposals is that stronger intellectual property protection would reduce the incentive for fast fashion companies to produce knockoffs. By slowing the rapid copying of designs, these protections could indirectly reduce the environmental damage associated with mass production. Therefore, Krzeminski’s proposal is quite convincing and effective, if implemented properly.
Greenwashing and Consumer Protection
In addition to design piracy, the fashion industry increasingly faces scrutiny for greenwashing. Companies often market products as “sustainable” or “environmentally friendly” without meaningful evidence to support these claims. The lack of clear legal definitions for sustainability allows brands to use these terms broadly in advertising. As West notes, even regulatory agencies have struggled to define what sustainability means in concrete terms for marketers.18 The FTC’s Green Guides have not been updated since 2012, demonstrating an asymmetry in information and a lack of alignment with modern trends.19 Especially for an industry like marketing, which has drastically changed in the last decade with the inventions and rise of social media such as Instagram and TikTok, marketing strategies look completely different in current times. Here is a clear legal gap in regulation. The recommendations for the FTC would be to: firstly, create a scientifically backed sustainable definition; secondly, make the guide legally binding; update it to reflect modern trends and usage of social media. Additionally, the recommendation provided by West is also convincing. She recommends that the FTC should follow in the steps of other countries and conduct greater investigative work to mitigate greenwashing in the fashion industry.20
Greenwashing undermines both consumer trust and genuine sustainability initiatives. It also disadvantages designers and brands that invest in environmentally responsible production methods, as they must compete with companies making misleading sustainability claims. Stronger environmental regulations and clearer legal standards would therefore benefit ethical designers by creating a level playing field within the industry.
Case Law Discussion
Gucci America Inc. v. Guess?, Inc. (2012)In Gucci America Inc. v. Guess?, Inc., Gucci alleged that Guess had copied several of its signature trademarks, including the interlocking“G”logo and the diamond-patterned monogram.21 The United States District Court for the Southern District of New York held that certain Guess products infringed Gucci’s trademarks. The court emphasised that distinctive
brand identifiers, such as logos and patterns, are protectable under trademark and trade dress law. This case emphasises the importance of trademark protection in the fashion industry. While clothing designs themselves may not be easily protected, brand identifiers can provide a powerful legal tool against imitation. This case is a good example of case law that still provides protection of distinctive brand identifiers, being beneficial to designers.
On the other hand, this approach also illuminates the limits of existing intellectual property frameworks. Designers without widely recognised trademarks may struggle to protect their work from copying. Thus, smaller designers or designers at the beginning of their careers are at risk. This explains a gap in intellectual property law. By filling in these gaps with regulation and strengthening IP law, designers will benefit, as well as consumers, and in an environmental context.
Hermès International v. Mason Rothschild (2023)
The Hermès v. Rothschild case addressed the intersection of fashion and digital art. Mason Rothschild created a series of NFTs called “MetaBirkins,” depicting digital versions of Hermès’iconic Birkin bags.22 A U.S. jury found that the NFTs infringed Hermès’ trademark rights, rejecting Rothschild’s argument that the artworks were protected under the First Amendment. The decision established an important precedent: trademark protection extends to digital environments, including the metaverse. For luxury fashion brands, this ruling reinforces the ability to protect their intellectual property in emerging technological spaces.
This ruling is important for modern times, where marketing and fashion is being increasingly conducted online on a variety of apps, such as Instagram, TikTok, Vinted, to name a few. Thus, it is important to properly extend IP law into new avenues. In order to keep up with evolving trends, the law must continue to expand in a number of areas. Along with expanding IP law, environmental regulations like greenwashing must follow. This ties back into the recommendations made for the FTC’s Green Guides and the importance of updating the guide and enforcing it for modern spaces.
The legal landscape governing fashion design and environmental sustainability reveals several structural gaps. Intellectual property law provides limited protection for fashion designs themselves. While trademarks and trade dress offer some protection for distinctive branding elements, most clothing designs remain vulnerable to copying.
Critical Analysis and Findings
Environmental regulation in the fashion industry remains weak and often ineffective. Existing environmental laws centre primarily on industrial pollution rather than the systemic issues associated with fast fashion production.
Additionally, consumer protection frameworks addressing greenwashing remain underdeveloped. Without clear definitions of sustainability, companies can continue to market products as environmentally friendly without meaningful accountability. Many countries do not
have a proper regulatory definition of ‘sustainable’, allowing companies to exploit well-meaning consumers.
Specific legal frameworks could address these issues simultaneously. Expanding intellectual property protection for fashion design through amendments to the VHDPA could reduce design piracy and slow fast fashion production cycles. Moreover, clearer environmental standards and stronger enforcement mechanisms could prevent greenwashing and encourage transparently sustainable practices. Investigations by the FTC and legally binding definitions of sustainability can also contribute to a more environmentally friendly fashion industry.
Conclusion
Stricter environmental laws and stronger intellectual property protections are often framed as burdens on industry. However, in the fashion sector, these reforms could produce significant benefits for both consumers and designers.
Fast fashion thrives on two legal gaps: weak protection for fashion designs and inadequate regulation of environmental claims. These gaps enable rapid copying of creative work, encourage unsustainable production practices, and allow companies to mislead consumers through greenwashing.
By strengthening intellectual property protection for fashion designs and clarifying environmental standards, lawmakers could reduce the incentives that drive fast fashion’s unsustainable business model. Such reforms would not only protect consumers from misleading claims but also support designers whose creativity underpins the fashion industry.
Table of Cases
Gucci America Inc. v. Guess?, Inc. US District Court, S.D.N.Y., [2012]
Hermès International v. Mason Rothschild US District Court, S.D.N.Y., [2023]
Table of Legislation
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Paris Convention for the Protection of Industrial Property
WIPO Copyright Treaty
Digital Markets, Competition and Consumers Act 2024 (UK) Vessel Hull Design Protection Act (US)
Clean Air Act Clean Water Act
Bibliography
Julia Krzeminski, ‘Slowing down Fast Fashion: How Improved Intellectual Property Law Can Protect Designers and Promote Sustainability’ (2024) 31 J Intell Prop L 269
Kasey A. West, ‘Goodbye to Greenwashing in the Fashion Industry: Greater Enforcement and Guidelines’ (2023) 101 NC L Rev 841
1 IPCC, 2023: Summary for Policymakers. In: Climate Change 2023: Synthesis Report. Contribution of Working Groups I, II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, H. Lee and J. Romero (eds.)]. IPCC, Geneva, Switzerland, pp. 1-34, doi: 10.59327/IPCC/AR6- 9789291691647.001, 7
2 Olivar Aponte, N., Hernández Gómez, J., Torres Argüelles, V., & Smith, E. D. (2024). Fast fashion consumption and its environmental impact: a literature review. Sustainability: Science, Practice and Policy, 20(1).https://doi.org/10.1080/15487733.2024.2381871, 1
3 Ibid
4 IEA (2025), Global Energy Review 2025, IEA, Paris https://www.iea.org/reports/global-energy-review-2025, Licence: CC BY 4.0, 17
5 ibid
6 Agreement on Trade-Related Aspects of Intellectual Property Rights 7 Paris Convention for the Protection of Industrial Property
8 WIPO Copyright Treaty
9 WIPO Performances and Phonograms Treaty
10 Federal Trade Commission, ‘Green Guides’ (2012) Issue 4, 7
11 https://www.whitecase.com/insight-our-thinking/greenwashing-risk-and-fashion- industry-snapshot-legal-developments
12 Julia Krzeminski, ‘Slowing down Fast Fashion: How Improved Intellectual Property Law Can Protect Designers and Promote Sustainability’ (2024) 31 J Intell Prop L 269, 273
13 ibid, 284 14 ibid, 286
15 Clean Air Act 1993, s.2 16 Clean Water Act, ch.3
17 Julia Krzeminski, ‘Slowing down Fast Fashion: How Improved Intellectual Property Law Can Protect Designers and Promote Sustainability’ (2024) 31 J Intell Prop L 269
18 supra, 852 19 supra
20 Kasey A. West, ‘Goodbye to Greenwashing in the Fashion Industry: Greater Enforcement and Guidelines’ (2023) 101 NC L Rev 841, 865
21 Gucci America, Inc v Guess?, Inc 868 F Supp 2d 207 SDNY [2012]
22 United States District Court of the Southern District of New York [2023]: Hermes Int’l v. Rothschild, No. 22-CV- 384-JSR, 2023 WL 1458126 (S.D.N.Y. Feb. 2, 2023), WIPO Lex
