LUXURY AND FASHION LAW IN SOUTH AFRICA REMAINSAN UNDERDEVELOPED DISCOURSE DESPITE THE COUNTRY’S ABUNDANCE OF CREATIVE TALENT AND CULTURAL INNOVATION

Abstract

Luxury and Fashion Law in South Africa remains significantly underdeveloped despite the country’s rich creative talent and expanding fashion industry. This paper examines the structural, legal, and institutional barriers that hinder effective protection of fashion designers and luxury brands. The functional, artistic divide in copyright law limits protection for fashion items, the high cost and complexity of intellectual property registration, and weak enforcement mechanisms that leave designers vulnerable to design piracy, counterfeiting, and unfair competition from multinational retailers. Case law, including Bress Designs, Caterham, Laugh It Off, and Adidas v Pepkor, illustrates the inadequacy of current legal frameworks. Limited legal literacy, informal industry practices, and insufficient government support exacerbate vulnerabilities within the sector. Drawing on African and global perspectives, the paper argues for comprehensive reform, including simplified IP registration, enhanced enforcement, and dedicated fashion law institutions. Strengthening this framework is essential to protect cultural expression and support South Africa’s creative economy.

Introduction

Luxury and fashion law in South Africa remains an emerging and underdeveloped field, despite the country’s vibrant creative industries and globally recognised design talent.

Luxury and fashion law in South Africa has been in its infancy, often falling behind the rapid pace of local design innovation and the influx of global fast-fashion competition. Whilst South Africa has established intellectual property laws, the specific application of these laws to protect, regulate, and foster the luxury and fashion industry is hampered by legal gaps, a lack of knowledge among designers, and limited enforcement mechanisms.

The prevailing obstacle is that, under South Africa’s current copyright law, many fashion articles are treated as functional rather than artistic, making it difficult for designers to secure long-term protection against design piracy. The current legal framework allows third parties to replicate designs through reverse engineering.

This gap between creative output and legal protection has left designers vulnerable to exploitation, design piracy, and unequal competition with multinational brands.

Historical Context

The historical evolution of South Africa’s fashion industry is deeply intertwined with the country’s socio-political trajectory. During apartheid, the sector was characterised by exploitative labour practices, particularly affecting Black and Coloured workers. Trade unions played a pivotal role in advocating for fair labour reforms, laying the groundwork for post-apartheid labour protections.

With the advent of democracy, South Africa faced a new challenge: protecting local industries from the influx of foreign brands. This prompted a growing need for stronger intellectual property laws to shield domestic designers from unfair competition. The formalisation of fashion law as a specialised field in 2015 marked a turning point, driven by experts responding to rampant design copying and the stealing of other designers’ ideas. In 2017, the government recognised fashion as a cultural industry through a parliamentary white paper, affirming its economic and creative significance.

The Legal Landscape and Its Limitations

1. Copyright Law and the Functional, Artistic Divide

 A central challenge lies in the classification of fashion items under copyright law[1]. Treating many fashion items as functional rather than artistic limits the scope of copyright protection, thereby allowing competitors to replicate designs through reverse engineering legally.

In Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd,[2] the court addressed the intersection of copyright and industrial design.

The facts of the case were that the applicant sought to protect the “Fendi” lounge suite as an artistic work, specifically a “work of artistic craftsmanship” under Section 1 of the Copyright Act.

The court confirmed the lounge suite was original. Although inspired by a photograph of an American design, the effort required to translate a 2D image into a 3D physical structure involved sufficient independent labour, skill, and judgment.

The core of the judgment rested on the “reverse engineering” exception. The court held that because the sofa was a 3D reproduction of an artistic work, had a primarily utilitarian purpose (seating), and was produced via an industrial process, it fell under the limitations of Section 15(3A) of the Copyright Act.

The respondent’s unauthorised copying did not constitute infringement. The court reasoned that copyright cannot be used to bypass the Designs Act to create a monopoly over mass-produced, functional consumer goods once they are made available to the public.

The claim for unlawful competition failed as the court found no evidence of “passing off” or “leaning on.” In the absence of a registered design, copying a functional product in an open market is generally permissible.

The decision by the court showed the importance of registration of your design and also the necessity for the law to accommodate functional designs in the copyright protections.

“For South Africa, the luxury market represents more than just a niche industry; it is a driver of cultural innovation and economic growth, contributing to both global recognition and local employment. By carefully balancing regulation with the maintenance of brand distinctiveness, South Africa can ensure that its luxury market continues to thrive, fostering both international partnerships and local talent development. Therefore, while scrutiny is necessary, excessive regulation could undermine the potential benefits this young industry offers[3].”

“Africa’s fashion ecosystem is vibrant, diverse, and deeply rooted in history, yet it faces a range of structural and legal challenges that set it apart from other regions. In much of Africa, fashion is driven by informal structures. Artisans, tailors, seamstresses, streetwear designers, fabric traders, and even some luxury designers operate outside formal legal and business systems. This informality means:

Verbal agreements instead of written contracts

Unregistered businesses and brands

Limited access to legal remedies or justice systems

This has created a culture where trust and tradition often take precedence over formal documentation and legal protection[4].”

The Fashion Law Academy states that, “despite a growing wave of creativity across the continent of Africa, many designers struggle to protect their intellectual property. Designs are copied, logos are misused, and original ideas are often stolen without consequences. Some brands also don’t have any IP protection in place for their designs. The barriers include:

High cost and complexity of IP registration

Little to no enforcement of IP laws

Low awareness of IP rights, particularly in rural and underserved areas

This weakens the creative economy and deters emerging designers from scaling their work[5].”

2. Barriers to Intellectual Property Registration

Legal protection often hinges on registering designs or trademarks with the Companies and Intellectual Property Commission (CIPC)[6][7] However, the process is costly, complex, and slow, misaligned with the fast-paced nature of fashion cycles. Emerging designers, in particular, lack the financial and legal resources to navigate these systems effectively.

An article from IP Stars states that, “many African designers and small businesses view intellectual property registration as an expensive, non-essential step compared to production or marketing due to cost perception. Even when rights are registered, some jurisdictions lack strong enforcement mechanisms, trained IP officers, or efficient courts. This makes it harder to stop infringers or counterfeiters quickly and increases the cost of legal action as a result of limited enforcement. Many entrepreneurs still see IP as a purely legal concept rather than a business asset. As a result, they miss opportunities to license, franchise, or monetise their creative work, and underestimate the risk of third parties exploiting it due to a lack of awareness of IP’s commercial value. Africa operates under multiple overlapping IP regimes, such as OAPI (Organisation Africaine de la Propriété Intellectuelle), ARIPO (African Regional Intellectual Property Organisation), and national laws. This complexity can confuse rights holders, discourage filings, and create loopholes that infringers exploit due to a fragmented legal landscape[8].”

In the case of Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd,[9] the court did not explicitly declare all copying lawful; it held that in the absence of statutory protection (like a registered design) or a proven common-law reputation that causes public confusion, a party cannot prevent another from selling a replica.

This case showed the importance of amending the Copyright Act and the Design Act to accommodate many designers who face barriers due to their unregistered artistic work or functional designs.

3. Enforcement Challenges

Even when designers secure IP rights, enforcement remains a major obstacle. Litigation against large retailers is prohibitively expensive, and many designers lack the expertise to identify infringements or pursue remedies. This creates a power imbalance that favours well-resourced corporations over independent creatives.

In the landmark case of Laugh It Off Promotions v South African Breweries International[10], Laugh It Off sold T-shirts altering the “Carling Black Label” beer branding to “Black Labour” and “White Guilt” as a social commentary on racial issues, which SAB claimed diluted their trademark.

The Cape High Court and Supreme Court of Appeal initially sided with SAB, finding that the T-shirts tarnished the brand’s reputation and were not protected by free speech.

The Constitutional Court unanimously found in favour of Laugh It Off, holding that trademark law cannot be used to stifle criticism or parodies, especially when no direct economic damage to the brand is proven.

The judgment set a high bar for trademark owners to prove “dilution” (blurring or tarnishment) and protected artistic/political expression in the form of brand satire.

This landmark judgment is evidence of a large corporation being protected by the legislation, irrespective of allegations of defamation.

In the case of Adidas AG and Another v Pepkor Retail Ltd[11], Adidas AG and Adidas International Marketing BV filed a lawsuit against Pepkor Retail Limited (which operates stores like Pep and Ackermans) for trademark infringement and passing off. 

Pepkor sold sporting and leisure footwear that featured two or four parallel lateral stripes. Adidas claimed these designs were confusingly similar to their registered three-stripe trademarks.

Pepkor argued that the stripes were merely decorative embellishments rather than trademarks. They also contended that the market for their low-cost products was distinct from the premium market targeted by Adidas.

On 28 February 2013, the SCA delivered a landmark judgment in favour of Adidas. 

The court held that the more distinctive a trademark is, the greater the likelihood of confusion when a similar mark is used on competing products.

While the court found no infringement for certain two-stripe leisure shoes, it ruled that the four-stripe configurations did infringe on Adidas’s registered marks. It also found Pepkor guilty of passing off because the overall “get-up” (design elements like stitching and placement) was too similar to Adidas’s iconic style.

Pepkor was interdicted from selling the infringing footwear and ordered to remove the marks or deliver the goods to Adidas for destruction. 

This case illustrates how close imitations can escape liability for trademark infringement.

An intellectual Property law firm called Spoor & Fisher states that, “South Africa’s legal framework includes robust laws aimed at curbing counterfeit goods. However, enforcement remains a significant challenge. The firm states that the sheer volume of goods passing through ports and borders makes it impossible to inspect every consignment thoroughly. Specialised teams and enhanced international cooperation are crucial to improving detection and enforcement efforts[12].”

The Counterfeit Goods Act[13], provides mechanisms for seizure of counterfeit goods. Whilst the Customs and Excise Act[14], empowers customs to detain suspected counterfeit imports.

4. Limited Legal Literacy in the Industry

A significant knowledge gap persists among designers regarding their rights and available protections. Without accessible legal education or advisory services, many creatives remain unaware of how to safeguard their work, negotiate contracts, or respond to infringements.

It has been stated that, “African fashion producers are being recognised as important cultural entrepreneurs, who can contribute to economic development and job creation, especially for young people. Intellectual property rights play a crucial role in safeguarding designers, and this is an area in which some African designers have not engaged adequately. The lack of focus on intellectual property rights has not been beneficial to the sector; it has been a setback and impediment. A 2014 study of CCIs in Cape Town revealed that few creative firms had formal copyright instruments to protect their intellectual property. To take advantage of growing local markets and enhanced digital technologies, such as e-commerce platforms that facilitate reaching global markets, African designers need to be able to protect and monetise their designs[15].”

Bernice Asein, founder of Fashion Law Institute[16], has stated that, “Many African designers and brands struggle with the protection of their intellectual property. There is often a lack of awareness about the importance of registering trademarks, copyrights, and patents, leaving many creators vulnerable to imitation and piracy. The African fashion industry is rich in cultural heritage, but the lack of proper IP protection means that traditional designs and techniques can be misappropriated by foreign entities without compensation to the original creators[17].”

Evidence of Underdevelopment

The underdevelopment of luxury and fashion law in South Africa is evident in several ways:

High prevalence of design copying: Local designers frequently report having their work replicated by major retailers, with limited recourse.

An article from FAIRBRIDGES Attorneys states that, “Unlike outright counterfeits, which illegally mimic brands and trademarks, dupes often navigate a grey area in IP law. They replicate the look and feel of a product without directly infringing on trademarks or design patents. However, this burgeoning dupe culture still raises significant concerns for original creators, eroding the value of their unique designs and potentially leading to financial losses. In South Africa, the challenge is twofold. The festive season traditionally sees a spike in consumer spending, making it a prime time for dupe sellers to capitalise on budget-conscious shoppers. Additionally, a complex challenge in the developing digital space is for South African intellectual property law to discern between legal but unethical dupes and outright illegal counterfeits[18].”

“Fakes aren’t just about price, they’re about power. Who can steal from who – and get away with it. Big retailers copy independent designers, because they know:

There’s no independent body or organisation to enforce IP protection

To protect their work, designers would have to go to court

Most designers don’t have the legal or financial capacity to stop someone stealing their designs[19].”

Low rates of IP registration:

Many designers avoid registration due to cost, complexity, or lack of awareness.

“The protection and promotion of intellectual property (IP) are vital drivers of innovation, economic growth, and job creation in South Africa. For small, medium, and micro enterprises (SMMEs), effective IP management can transform ideas into valuable business assets, fostering sustainable growth. However, many SMMEs struggle to navigate the complexities of IP due to high costs, legal barriers, and limited access to support[20].”

“Innovation and creativity are the drivers of progress, but without protection, these valuable assets can be easily copied or misused.  This is where intellectual property rights come in, granting creators exclusive rights over their work and allowing them to reap the rewards of their efforts[21]

Weak institutional support:

Unlike jurisdictions such as the EU or the US, South Africa lacks dedicated fashion law associations, legal clinics, or regulatory bodies.

“From weak IP registries to underfunded court systems, infrastructure remains a major challenge for fashion law in Africa. The effects are:

Access to justice for small brands and creatives

Delays in business registration and contract enforcement

Difficulty in enforcing employment and labour laws across fragmented supply chains. Without adequate infrastructure, even the most well-intentioned laws cannot effectively serve the industry[22].”

“Lack of public and private investments and the related issue of inadequate infrastructure are among the main challenges affecting the development of the fashion sector. The fashion industry requires significant capital, and upfront investments must be made to foster product development, marketing, and brand building, expand production capacity, and access new markets. Without structured investment channels, African fashion entrepreneurs and businesses struggle to secure the necessary funding to realise their ambitions, hindering their potential to scale their operations and reach their full potential[23].”

Slow legislative reform: Despite the 2015 recognition of fashion law as a field, substantive legislative updates remain limited.

“Fashion is still not seen as a serious policy issue in many African countries. Ministries of trade, culture, or industry often overlook the sector, leaving creatives without structured legal support. The consequences include:

Few lawyers are trained in fashion-related legal issues

Limited government support for fashion as part of the creative economy

Absence of fashion law in legal education and research. While some countries are making progress, the sector needs policy-level recognition and investment[24].”

Solutions to Strengthen the Field

1. Reforming IP Legislation

Expand copyright protection to include certain fashion designs as artistic works.

Introduce automatic, short-term design protection aligned with fashion cycles.

Simplify and reduce the cost of design and trademark registration.

2. Building Legal Literacy

Develop accessible legal toolkits for designers.

Integrate fashion law modules into design schools and law faculties.

Establish pro bono legal clinics specialising in creative industries.

3. Strengthening Enforcement Mechanisms

Create fast-track dispute resolution forums for design infringement.

Encourage industry-wide codes of conduct for ethical design practices.

4. Institutional and Policy Support

Establish a national Fashion Law Council to coordinate advocacy, research, and policy development.

Expand government funding for IP protection in creative industries.

Promote public-private partnerships to support emerging designers.

5. Regional and Continental Leadership

South Africa can position itself as a leader in African fashion law by:

Developing harmonised IP frameworks for cross-border design protection.

Supporting African designers entering global markets.

Leveraging the African Continental Free Trade Area (AFCFTA) to protect creative goods.

Conclusion

South Africa stands at a pivotal moment. The country’s creative industries are flourishing, yet the legal frameworks meant to protect and empower designers remain underdeveloped. Addressing these challenges requires coordinated legal reform, institutional support, and investment in legal literacy.

By strengthening luxury and fashion law, South Africa can unlock the full potential of its creative economy, protect cultural expression, and ensure that designers, especially marginalised ones, can thrive in an increasingly competitive global market.

Bibliography

Legislation

• Copyright Act 98 of 1978.
• Designs Act 195 of 1993.
• Counterfeit Goods Act 37 of 1997.
• Customs and Excise Act 91 of 1964.

 Cases

• Adidas AG and Another v Pepkor Retail Ltd 2012 1 All SA 636 (WCC).
• Bress Designs (Pty) Ltd v GY Lounge Suite Manufacturers (Pty) Ltd 1991 (2) SA 455 (W).
• Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd 1998 (3) SA 938 (SCA).
• Laugh It Off Promotions v South African Breweries International 2005 (8) BCLR 743 (CC).

Secondary Sources

• Fairbridges Attorneys, Dressed in Deception: Unpicking the Dupe Stitch in Fashion Law. Dressed in Deception: Unpicking the ‘Dupe’ Stitch in Fashion Law – Fairbridges Attorneys accessed 8 March 2026.
• Fashion Law Academy Africa, The African Perspective on Fashion Law. The African Perspective on Fashion Law: Between Global Influence and Local Realities accessed 8 March 2026.
• Gatawa NG and Snowball JD, ‘Unleashing the Potential of the South African Designer Fashion Sector’ (2024) African Journal of Creative Economy. https://doi.org/10.4102/ajce.v1i1.5 accessed 8 March 2026.
• IP Stars, IP Vulnerabilities in African Fashion Supply Chains. IP vulnerabilities in African fashion supply chains | IP STARS accessed 8 March 2026.
• Spoor & Fisher, Fakes & Frauds: The Costly Impact of Counterfeit Goods. Fakes & Frauds: The Costly Impact of Counterfeit Goods accessed 8 March 2026.
• UNESCO, The African Fashion Sector: Trends, Challenges & Opportunities for Growth.
• CIPC, Intellectual Property Reference Guide for SMMEs. CIPC | Your business, our focus accessed 8 March 2026.
• Free Market Foundation, ‘The Price of Exclusivity: Tying Practices in Luxury Goods and South African Competition Law.’ The price of exclusivity: Tying practices in luxury goods and South African competition law | Free Market Foundation accessed 8 March 2026.

[1] Copyright Act 98 of 1978.

[2] 1991 (2) SA 455 (W).

[3] The price of exclusivity: Tying practices in luxury goods and South African competition law | Free Market Foundation accessed 8 March 2026.

[4] The African Perspective on Fashion Law: Between Global Influence and Local Realities accessed 8 March 2026.

[5] The African Perspective on Fashion Law: Between Global Influence and Local Realities   accessed 8 March 2026.

[6] The South African Designs Act 195 of 1993.

[7] CIPC | Your business, our focus accessed 8 March 2026.

[8] IP vulnerabilities in African fashion supply chains | IP STARS  accessed 8 March 2026.

[9] 1998 (3) SA 938 (SCA).

[10] 2005 (8) BCLR 743 (CC).

[11] 2012 1 All SA 636 (WCC).

[12] Fakes & Frauds: The Costly Impact of Counterfeit Goods accessed 8 March 2026.

[13] 37 of 1997.

[14] 91 of 1964.

[15] Gatawa, N.G. & Snowball, J.D., 2024, ‘Unleashing the potential of the South African designer fashion sector’, African Journal of Creative Economy 1(1), a5. https://doi.org/10.4102/ajce.v1i1.5 accessed 8 March 2026.

[16] https://www.fashionlawinafrica.com/ accessed 8 March 2026.

[17] https://www.linkedin.com/pulse/fashion-law-africa-african-industrys-legal-landscape-2024-asein-v5qjf accessed 8 March 2026.

[18] Dressed in Deception: Unpicking the ‘Dupe’ Stitch in Fashion Law. Dressed in Deception: Unpicking the ‘Dupe’ Stitch in Fashion Law – Fairbridges Attorneys accessed 8 March 2026.

[19] Explainer: Counterfeit culture and why fakes threaten designers and our economy – twyg accessed 8 March 2026.

[20] https://www.cipc.co.za/wp-content/uploads/2025/05/Intellectual-Property-Reference-Guide-for-Small-Law-Firms-SMMEs.pdf accessed 8 March 2026.

[21] https://gawieleroux.co.za/af/node/851#:~:text=Innovation%20and%20creativity%20are%20the,laws%2C%20regulations%2C%20and%20treaties. Accessed 8 March 2026.

[22] https://www.fashionlawacademyafrica.com/post/the-african-perspective-on-fashion-law-between-global-influence-and-local-  realities#:~:text=From%20weak%20IP%20registries%20to,business%20registration%20and%20contract%20enforcement accessed  8 March 2026.

[23] The African fashion sector: trends, challenges & opportunities for growth, UNESCO. https://doi.org/10.58337/PHDP8559  accessed 8 March 2026.

[24] The African Perspective on Fashion Law: Between Global Influence and Local Realities accessed 8 March 2026.