THE ROLE OF LAW IN FASHION BY DARA ONIOSUN

Fashion law is the application of law to the fashion industry. Fashion law is applicable to textile, footwear, cosmetics and perfume industries. In other legal climates, it is called Apparel law. The principle of fashion law seeks to protect the legal rights of industry players. Key areas of focus include copyright, trademark, patent, and industrial design protection.  

Stakeholders in the fashion industry include designers, fashion houses, manufacturers, and suppliers, fashion influencers, illustrators, modeling agencies, retailers and photographers.  

The role of lawyers in the industry includes but is not limited to drafting and negotiating contracts, merchandising, licensing and distribution, franchising agreements,  registering of trademark and other intellectual  property issues.

In Europe and America the practice of fashion law is already an established field with extensive research being done and several interesting cases. Fashion lawyers are emerging every day, some institutions in Europe and America offer specialized courses in fashion law.

Intellectual property law is the foundation upon which fashion law is built .Brands all over the world a very particular about their IP protection. Recently the International Trade Commission voted to investigate Crocs' complaint over copycat clogs. Another example of the practical application of fashion law is the recent trademark suit settlement between Chanel and resale site Crepslocker over its use of Chanel name and logo.  The fashion industry is booming with estimated revenue of 1.46 trillion dollars in 2020. The revenue is expected to increase to 2.25 trillions dollars by 2025 according to consumer market outlook. With a market as big as this, fashion outfits and designers are engaging the services of lawyers to ensure their intellectual property and contractual rights are protected.  

 

The practice of fashion industry is well established in other climes but same cannot be said about Africa, Nigeria to be particular. The fashion industry in Africa may not be at par with other climes but there has been steady growth and increase over the last 10 years. Euromonitor suggests that sub-Saharan fashion market is worth 31 billion dollars with Nigeria accounting for 15% of that (4.7 billion) dollars. The Nigerian Gross Domestic Product (GDP) from the National Bureau of Statistics (NBS) says that the textile apparel and footwear sector averaged a growth of 17% since 2010.

Fabrics at best can be classified as artistic work under the provision of the Copyright Act.

The growth in the fashion industry has necessitated the needs for laws to guide transactions and dealings in the industry and the need for Lawyers with understanding to come in to help sort out this fairly uncharted course. However there exists no specific legal framework or legislation governing the fashion industry in Nigeria. This has necessitated the use of intellectual property to protect the rights of fashion practitioners. The Copyright Act, Trademark Act, Patent and Design Act are applicable in this instance. Using intellectual property, fashion industry players can register their brand names and logos as trademarks.

Well-drafted contracts are also needed to protect the rights of contracting parties along the fashion value chain. Some common contracts in fashion industry include:

Merchandising

Merchandising is the promotion of the sale of goods that may employ pricing, special offers, display and other techniques designed to influence consumers' buying decisions. It involves employing creative ways to display the goods so as to attract customers. 

Licensing

Licensing is the grant of use of licensor product to the licensee to earn money. Money earned by the licensor is called royalties. The duration, geographical area where the item would be sold are agreed between both parties.

Distribution

Distribution is the process of both selling and delivering products and services from manufacturer to customer. A distribution agreement is between the owner and the distributor who handles the distribution of the product.  A distribution agreement could be exclusive where only one distributor handles the distribution of the product. In exclusive contracts, the product owner is excluded from having any other distributor to handle the distribution of his product. A non-exclusive distribution agreement is between the product owner and many distributors.

Franchising

Franchising is form of marketing and distribution where the owner of the brand (franchisor) grants an individual or group of individuals (franchisee) the right to run a business, selling product using the franchisor's business system. The international franchise association defined franchise as ''a contractual relationship in which a continuing interest in the business of the franchisee in such areas as know-how and training wherein the franchisee operates under a common trade name, format or procedure owned by or controlled by the franchisor, and in which the franchisee has made or will make a substantial capital investment in his business from his own resources' .

Franchising can be grouped into three categories.

A. Most franchise agreement fall under the business format where the franchisor licenses a business format, operating system and trademark rights to its franchisees.

B. The second type is production distribution which is more of a supplier –dealer setup. The franchisor grants the franchisee program permission to sell or distribute a product using logo, trademark and trade name, but typically does not provide an operating system to run the business with.

C. The third is manufacturing, where the franchisor permits the franchisee to manufacture products and sell under its brand trademark.

 

Franchise agreements are governed by strict terms to ensure that there is brand consistency.

 

Conclusion

The fashion industry constantly faces piracy as a major problem in Nigeria. Pirates mimic the work of popular brands, create counterfeits and get away with it. Trademark theft (logo) is also common in the fashion industry in Nigeria. Technology has made it possible for counterfeit products to reach consumers faster than the original product while the creators are battling for protection rights under the Copyrights Act, Patent and Design Act; the counterfeits are purchased by consumers before the creators can even reap the benefits of their work. The Fashion industry needs a regime that can cope with the fast nature of the industry. Since fashion is greatly hinged on trends and seasons, the creator of a fashion item should benefit from his work while it still remains a trend rather than lose income to the counterfeits.

The need for a proper legal framework to guide the fashion industry is important.  A proper legal frame work encourages stakeholders in the industry know that their investments would yield returns and they would not have to contend with mass piracy that would likely go unchecked. Fashion industry players also need to ensure that their brand names and logos are duly registered trademarks as this would help their product.

Conclusively, the need for fashion entrepreneurs along the value chain to get sound legal advice as regards their businesses, cannot be over-emphasized.