Authored By: Damibola Opemipo
University of Ibadan
According to the World Intellectual Property Organization, Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
Intellectual property is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. Supporters argue that because IP laws allow people to protect their original ideas and prevent unauthorized copying, creators derive greater individual economic benefit from the information and intellectual goods they create, and thus have more economic incentives to create them in the first place. By exchanging limited exclusive rights for disclosure of inventions and creative works, society and rightsholders mutually benefit, an incentive is created for inventors and authors to create and disclose their works. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions..
TYPES OF INTELLECTUAL PROPERTY
The types of intellectual property (IP) include patents (for inventions), copyrights (for creative works), trademarks (for brand identifiers), and trade secrets (for confidential business information), industrial designs (for product appearance), geographical indications (for products from a specific region), and plant variety rights (for new plant varieties).
We’ll be looking at the main types which are Patents, Copyright and Trademark.
PATENTS:
A patent is an exclusive right granted for an invention. Patents benefit inventors by providing them with legal protection of their inventions. However, patents also benefit society by providing public access to technical information about these inventions, and thus accelerating innovation.
COPYRIGHT:
Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings. Copyright is a legal right that gives an author exclusive control over their original creative works, such as books, music, and art, to prevent others from copying, distributing, or performing them without permission for a limited time. It protects original creations fixed in a tangible form but does not cover ideas or titles.
TRADEMARKS:
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. The primary function of a trademark is to identify the source of goods or services and prevent consumers from confusing them with those from other sources. A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Trademarks are protected by intellectual property rights.
INTELLECTUAL PROPERTY IN THE FASHION INDUSTRY
Intellectual property protection has been a substantial legal concern in fashion since the emergence of fashion brands in the 19th century. The scope of copyright protection, trademark infringement and counterfeit goods,utility patents, particularly in connection with advances in technology,the use of design patents as an alternative or supplement to copyright protection,and comparative international standards, are key Issues in relation to IP.
Fashion is art, commerce, and culture all wrapped in one. Yet behind the glamour of runway shows and emerging fashion trends lies a legal backbone that keeps the industry thriving. This is where intellectual property rights (IP) come in. For fashion designers and brands, safeguarding creations isn’t just about pride in their work but also protecting the future of their fashion businesses.
France was one of the first places to turn out original creative designs. Design protection has been a priority in France since the 15th century, when the “fabrication of textiles” was granted protection.
INSPIRATION VS ILLEGAL COPYING
Fast fashion’s rapid replication of trends has blurred the line between inspiration and illegal copying. The rate at which some Fashion brands or small business owners replicate trendy outfits makes it hard to protect the original designs. Brands like Shein have been accused of releasing products that are in close resemblance to other designers and sometimes, luxury brands. In the course of mass production of clothing, inspiration often borders on plagiarism raising issues on how far a design can be replicated without breaking the law.
In Africa, there are common traditional styles people grow up wearing. Who originated these styles and how can they be protected? This is a question that has lingered long enough. Does the person who protects the Intellectual Property own it first? The law may protect known brands but businesses and small brands are unknown and not properly protected. Another difficult point is in the recreation of styles. Apps like Pinterest and other social media platforms allow for the remaking of the same style from another person and sometimes not from the same fashion designer. The law is silent on these parts because it’s not outrightly illegal. The creativity and expression of people can be seen in what they wear. Every African piece tells a story. Although brands are registered under the national Intellectual Property Organization, styles and designs are vaguely talked about. It’s possible to see a design you like and wish to recreate it.
The difference between counterfeiting and copying in fashion is not clear. The law itself allows a certain degree of imitation.
Isabel Antón Juárez explains that counterfeiting is illegal from a trademark perspective and can even be pursued criminally. Copying, now called dupes (duplicates), is where the boundaries are less clear. With a dupe, there is more creativity, variations compared to the original. For this reason, determining whether it is legal is more complicated. If those copies are partially different from the original, they can be protected and claim that there is no infringement of intellectual or industrial property, but rather inspiration.
In conclusion, The global fashion industry is evolving, and so is the approach to intellectual property protection. With advancements in technology, digital tools are emerging to track and combat infringement. Additionally, the growing spotlight on sustainable fashion emphasizes ethics and originality, pushing for more fair practices in design attribution and production. The narrative is slowly shifting from mass imitation to valuing creativity, a change likely reinforced by stronger international cooperation on intellectual property law in the future.
Vogue College of Fashion: Fast Fashion and Intellectual Property- When Is It Considered Copying or Inspiration? Ana Arjona – 24 March 2025.
World Intellectual Property Organization: The role of IP rights in the fashion business: a US perspective – August 3, 2018
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Article 1(2) of the Paris Convention.
Mark A. Lemley. “Property, Intellectual Property, and Free Riding”. Heinonline. Heinonline.org. Retrieved 17 August 2015
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Scafidi, Susan (2006). “Intellectual Property and Fashion Design”. In Yu, Peter (ed.). Intellectual Property and Information Wealth. Vol. 1. Praeger.
Schmeiser Olsen: the role of intellectual property in the fashion industry.
