Authored By: Vuyiswa Khoza
Eduvos
Abstract:
This is an analytical study that explores the protection of international intellectual property laws in relation to fashion law, especially between luxury fashion brands and fast fashion brands. The studies seek to understand whether the protections that are afforded to luxury fashion brands are sufficiently protecting luxury brands or are the laws simply insufficient. The study uses international and regional case law studies in order to showcase where the laws have succeeded and where the laws have failed to mitigate counterfeiting in the fashion industry. Furthermore, the study makes use of examples of the different fast fashion brands that benefit from the insufficiencies of the intellectual property legal system.
Introduction:
The World Intellectual Property Organisation (WIPO) defines Intellectual Property rights as, “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” In the fashion realm there has been a new business model that has gone completely global, fast fashion. Fast fashion refers to clothing that has been mass produced using cheap and low-quality fabrics in order to meet new immerging trends (Lai, 2021). Fast fashion brands tend to cater for the majority that cannot necessarily afford luxury fashion houses by taking designs created by large fashion houses and replicating said designs at a cheaper price. Fast fashion was created for both accessibility and convenience. However, fast fashion goes against the entire point of luxury. Luxury is defined as being, “a condition of abundance or great ease and comfort,” (Webster, 2026).
Luxury fashion, by design, was created with exclusivity in mind. That was its greatest selling point, that not everyone would be able to access it. The problem with that is that the fashion industry is one that can be imitated easily and, though intellectual property rights exist for designers, these laws are often extremely limited and leave ample room for rivals to imitate and benefit from other creatives (Jemenez & Kolsun, 2014). In most industries the actions of fast fashion brands are considered plagiarism, however, in fashion it can be completely permissible when done in specific ways.
The investigative question in this study is, how can the intellectual property rights of luxury fashion houses and trademarks be sufficiently protected against counterfeiting by fast fashion brands. This study serves to analytically explore the intersection between luxury fashion, fast fashion and international intellectual property law. This will be achieved using an analytical analysis between legal frameworks from international law in order to determine whether the protections that luxury designers rely on are sufficient against fast fashion and whether fast fashion infringes on their intellectual property rights in the first place.
Background and Conceptual frameworks:
The history of Fast Fashion:
The business model of fast fashion began, primarily, in Asia in the 1970s when businesses realised that in certain Asian countries workers could be paid lower wages than that of Western countries and began producing goods in Asian countries and exporting the goods to Western countries. The reason this was revolutionary was due to luxury fashion designers at the time were releasing approximately 4 collections a year whereas fast fashion allowed for a more frequent amount of collections (Kelleher, 2026). Fast fashion essentially dismantled the ground that luxury fashion designers stood on by doing so as it eliminated the element of scarcity, exclusivity and unaffordability of fashion to the public. This made fashion accessible which it was not initially created to be. However, in order for fast fashion brands to be able to carry this out, they had to discover a path around the legal protections that were enjoyed by luxury brands such as the LVMH Group.
The history of Luxury Fashion:
The beginning of luxury cannot be traced to an exact time in history as luxury has been associated with the elites and royalties before the existence of history as currently known. However, ancient Egypt has been documented as having one of the most luxurious cultures in history. Egyptian luxury was expressed using gold accessories, palaces and perfumes that only the pharaohs, the queens and High priests could indulge themselves with (Pearson, 2015). This behaviour is the evidence of the existence of hierarchy and exclusivity within luxury from its conception. The reason for this is the need for human being to compartmentalise and group individuals in order to establish identity. The same identity of which Intellectual property rights seek to address.
Conceptual Frameworks: Trademarks
In order for luxury fashion brands to ensure that a design that they have produced is only used by the brand and those whom the brand has authorised, the brand is required to trademark such a design. A trademark is an identifier of a symbol, phrase or sign to a specific good or service legally owned by a specific country (Tardi, Rasure, & Kvilhaug, 2026). In fashion acquiring a trademark can prove to be difficult due to timing, funding and the requirements of registering a design which is where fast fashion brands stand to benefit and take advantage.
It becomes incredibly difficult to register a trademark for every single design that a brand reveals as part of its collection as certain elements are rather too generic such as, a mermaid dress cannot be anything other than a mermaid dress whether the dress be diamond encrusted or whether is glows in the dark. A brand cannot trademark general articles of clothing.
Legal Analysis:
International Intellectual Property Laws:
International Intellectual Property Laws refer to the legal statues, treaties, and international organisation that are set in place to protect intellectual property rights across borders (Ruse-Khan, Calboli, & Montagnani, 2021). The main international organisation that governs international property rights is the World Intellectual property organisation (WIPO) that was established by the United Nations (UN) in 1974 to protect copyrighted material and industrial property such as designs, inventions and artistic works (Tikkanen, 2023). International organisations play a significant role in laws as they provide a point of law enforcement for laws that have been enacted and ensures that creatives globally are able to commercialise their works in safe manner that benefit society and economic growth.
For international laws to exist, states must enter into international agreements such as treaties, protocols or conventions. The WIPO was formed through a convention that was signed in Stokholm in 1967 and became an agency of the UN (Tikkanen, 2023). The disadvantage of international law conventions is the fact that for the terms of a convention to be enforceable in a state, the state must have ratified the convention into its legal system. According to the WIPO, currently approximately 194 countries have ratified the convention. This means that theses countries may be held liable under the convention for infringing upon the agreement.
Fashion Law:
Fashion law is defined as a specialised area of laws created to address legal issues within the fashion industry contracts, intellectual property, consumer protection and, labour (Rosati & Calboli, 2025). Fashion law is an intricate area of law as it encompasses other specialties of law within it and cannot be simply defined, however, this study seeks to understand the intellectual property component within fashion law. Fashion is popularly described as being a form of self-expression and a channel by which an individual is able to externally showcase their identity and interests without the need to do so verbally. Hence there are identity groups within fashion itself which are identifiable through their appearance, for example the goth community. Intellectual property rights and laws exist to protect this showcase of creativity, expression of self and the expression of creators’ identity.
The conversation surrounding fast fashion is one focused on the negative environmental effects of fast fashion, an important conversation. However, the negative effects that fast fashion has on creatives is rarely addressed despite laws being set in place to protect same. The right to freedom of expression is a fundamental human right and is enshrined in the Universal Declaration of Human Rights Article 19 but though it is a fundamental right, it can be limited under article 29(2) in support of the human rights of another (The United Nations, 1948). Fast fashion designers do not necessarily copy articles of clothing exactly as the original designer has created it all the time, some instances they alter minute details in order to not infringe on legal frameworks. On the instant whereby they copy the designs exactly the same they may change the logo as means of protection because as previously explained, generic pieces of clothing cannot be trademarked unlike a logo or a distinguishing feature.
Fashion brands such as Zara and H&M, popular American countries, are famously known for counterfeiting luxury brands in manner that is does not infringe on intellectual property rights of luxury brands such as Gucci, Chanel and Louis Vuitton by creating clothes that look identical to the original product with a different logo or no logo at all to keep up with trends and make luxury accessible (Sutton & Quin, 2025). In countries like South Africa, there are brands such as Luella which is a brand by the Foschini group which has counterfeited various brands designs such as Coach. The designs generally differ in size however the designs are evidently that of a luxury brand.
Case Law Discussion:
Case Law 1: LA Group (Pty.) Ltd v Stable Brands (Pty.) Ltd and another (Case no 650/2020) [2022] ZASCA 20 (22 February 2022).
In the matter that set precedence for fashion trademarks in South Africa between LA Group Pty. Ltd (LA group) versus and Stable Brands Pty. Ltd (Stable group), the South African Supreme Court of Appeal upheld the order granted by the High Court to have 46 trademarks that had been registered under the LA group removed from the Registrar of Trademarks. Stable group, the plaintiff, is a South African clothing company that had contracted with the US Polo association for the use of the ‘Polo’ trademark for the company’s products. LA group, the first respondents, is a clothing company in South Africa that sells clothing apparel and had trademarked the ‘Polo’ term and various phrases attached to the term.
In 2018, LA group applied for an interdict in the high court of South Africa to cease the Stable groups use of the term ‘polo; as it infringed on the company’s trademark to which the Stable group filed a counterapplication to have the LA groups trademarks removed under the Trade Marks Act 194 of 1993 under sections 10(2), 27(1)(b), 27(1)(a). The Supreme Court of Appeal found that under s10(2) the trademarks had been intensively and continuously been in use since 1976 which acquired the trademarks distinctiveness. This meant that the term ‘Polo’ in the industry had become a generic customary term that did not meet the requirements of a trademark. The court partially upheld that under s27(1)(b) the marks had not been in 5 years and that under s27(1)(a) had been registered without the intention for use (LA Group (Pty.) Ltd v Stable Brands (Pty.) Ltd and another, 2022).
Case law 3: Deckers Outdoor Corporation v Wolverine group Pty Ltd
In the matter between Deckers Outdoor Corporation, the plaintiff, and Wolverine Pty Ltd, the defendant, whereby the plaintiff had pursued an action against the defendant under infringement of a trademark for the use of the branding of “Ugg.” The plaintiff has been a prominent producer of footwear under the brand name of “Ugg USA” and has been known to be the main distributor of the footwear brand. The company has trademarked the brand in various countries, including Australia. The defendant is an Australian distributor of a similar footwear under the brand name, ‘UGG since 1974’ as the brand has manufactured the footwear since 1974. The plaintiff’s claim is that the use of the word ‘Ugg’ in the name of the brand directly infringes on the trademark of the plaintiff by causing confusion to customers in terms of which brand is the original. The defendant argued that the Australian ‘UGG since 1974’ brand carried heritage significance in the country, and the term ‘Ugg’ had been used to describe a generic type of boot that the brand also manufactured. The argument did not stand in front of the court, and the brand subsequently had to change its name to ‘since 1974’ (Deckers Outdoor Corporate v Wolverine group Pty Ltd, 2025).
The commonality between these matters is that the presiding judges ruled in favour of the larger and more influential brand rather than investigating the origins of each brand and standing with the brand that invented or had been creating and designing the product first. In Australia the brand ‘since 1974’ has been the default brand where citizens purchase their Ugg boots, yet the brand was forced into changing its identity and on of its distinctive features, its branding. In certain instances, the laws attempt to protect certain elements ends up benefiting those with the most money and global reach.
Critical Analysis and Findings:
The study finds that the intellectual property protections that have been made available to luxury fashion houses are only partially effective against fast fashion counterfeiting. Although international and domestic legal systems recognise copyright, trademarks and design protection, these mechanisms do not account for the realities within the fashion industry. Fashion trends are forever moving and changing but registration of a trademark or patent is time consuming and costly. As a result, luxury brands are unable to secure formal protection for every design released within a collection. This then creates the gap that fast fashion brands exploit by reproducing the overall appearance of luxury products while avoiding duplication of protected features.
Another important finding is that trademark law tends to provide stronger protection towards a fashion brand’s identity than for the clothing that the brand produces. Elements such as logos, and distinctive symbols can usually be protected through trademark law, whereas clothing shapes, styles, and other common design features often cannot. As a result, fast fashion retailers may be able to imitate the look and style of a luxury fashion item without infringing trademark rights, as long as they are able to avoid using the legally protected brand name or logo. This highlights a significant limitation in the existing laws, as it protects the label attached to a product more effectively than the creativity behind the design which was the justification behind international intellectual property laws.
The cases discussed also show that courts place considerable importance on factors such as distinctiveness, prior use, and the likelihood of consumer confusion. In both LA Group (Pty) Ltd v Stable Brands (Pty) Ltd and Deckers Outdoor Corporation v Wolverine Outdoors, Inc., the key issue was not necessarily who created the design first, but whether the trademark had become distinctive or generic in the eyes of consumers. This suggests that intellectual property law does not always prioritise originality. Instead, businesses that have developed strong brand recognition and a significant global presence are often in a stronger position to benefit from legal protection.
Overall, the findings suggest that the current legal framework cannot fully protect luxury fashion houses from fast fashion counterfeiting and imitation. Although trademark law is effective in preventing the unauthorised use of trademarked brand names and logos, it is less effective when it comes to protecting the design elements of fashion products. Therefore, there is a need for stronger fashion-specific legal protections, more efficient trademark registration processes, and improved international enforcement measures to better protect originality and creativity within the luxury fashion industry.
Conclusion:
From the study conducted, it can be deduced that the international intellectual property laws that were created to protect the ideas, inventions and creativity of individuals partially succeed and fail in doing so. The laws succeed in that it protects the creativity of brands that have created a distinctive and know persona of their brand and have the monetary muscle to afford constant trademark registration. In the same breath, the laws fail to protect fewer known brands with original ideas that may never commercialise due to lack of a global presence. The law by design is meant to be as fair and as impartial as possible, however, in the fashion industry tends to favour one side over another which results in fast fashion brands taking advantage of this fact and exploiting luxury fashion brands and the consumer. The most unfortunate part of this study’s discovery is that just has long as it takes to register a trademark, it takes just as long to amend an internation convention that has been ratified by hundreds of countries which means change may take a while to take place, however, it is not impossible.
Reference(S):
- Deckers Outdoor Corporate v Wolverine group Pty Ltd, 24-cv-03164 ( UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION February 13, 2025).
- Jemenez, G. C., & Kolsun, B. (2014). Fashion Law: A guide for Designers, Fashion Executives and Attorneys. New York: Fairchild books.
- Kelleher, D. (2026, May 5). Encyclopedia Britannica . Retrieved from Britannica: https://www.britannica.com/art/fast-fashion
- LA Group (Pty.) Ltd v Stable Brands (Pty.) Ltd and another, 650/2020 (Supreme Cout of Appeal February 22, 2022).
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- Pearson, S. K. (2015). Egyptian Airs: The Life of Luxury in Roman Wall Paintings. Berkeley: ProQuest Dissertations & Theses.
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- Sutton, S., & Quin, J. (2025, October 22). Style Caster. Retrieved from Style Caster.com: https://stylecaster.com/lists/brands-like-zara/
- Tardi, C., Rasure, E., & Kvilhaug, S. (2026, April 8). Investopedia. Retrieved from Investopedia.com: https://www.investopedia.com/terms/t/trademark.asp
- The United Nations. (1948). Universal Declaration of Human Rights. Paris.
- Tikkanen, A. (2023, March 20). Encyclopedia Britannica. Retrieved from Britannica : https://www.britannica.com/topic/World-Intellectual-Property-Organization
- Webster, M. (2026, June 2). Merriem Webster Dictionary. Retrieved from Merriem Webster.com: https://www.merriam-webster.com/dictionary/luxury
