Fashion Week season is the chance for fashion brands to show their flair and dynamism by launching new creations, ready to be devoured by buyers, influencers, journalists, consumers, and unfortunately, also by competitors.

As it is coming to an end, below is a quick guide which we hope will come in handy when your colleagues return to the office and swamp you with their questions on the similarities they spotted with your last runway.

1. Copycats: unregistered designs, unfair competition and copyright

Better register first than be sorry later. In general it is a good idea to register fashion products which have a reasonable expectation of commercial success as designs or, where possible, as shape-trademarks before they appear on the catwalk.

But if you have not taken that route for one reason or another and you encounter highly similar products on the market, there are other ways to protect your products through IP. One way is to take advantage of the European unregistered design. A design which meets the validity requirement (novelty and individual character) can still be protected by EU unregistered design rights. This right covers products for three years from the date on which the design was first made available to the public within the EU territory. To take advantage of the unregistered design protection, your legal team does not need to file any paper as the right arises by mere “disclosure” to the public at the fashion show. However, should your lawyers have to prove that the disclosure occurred, make sure to keep a record, such as printed documentation related to the catwalk show, including the date it happened. The limitation with an unregistered design is that it merely confers the right to prevent third parties from using a design only when it occurs as a consequence of the copying the protected design.

After these three years or in case your design does not meet the validity requirements, a further option to use is considering when an unfair competition claim might be asserted.

Unfair competition may protect your fashion items against copying in two scenarios.

The first arises where there is so called “slavish imitation”. Here the imitation causes or could cause confusion among the public as to the origin of the product, i.e., the public may be led to believe that the copying product comes from the original designer. In this case, the stumbling block is to prove that the infringed item is distinctive.

For the design to be distinctive in the view of the public it may be necessary that the product is advertised, and this clashes with seasonal trends and the breadth of collections which fashion houses present during various fashion weeks. It is essential for the commercial team to join forces with the marketing department to consider launching some smart advertising campaigns.

Copying of clothes and accessories from previous collections which, although new, are not distinctive enough to enjoy protection from unfair competition caused by confusion, might still be regarded as unlawful (even if there is no element of confusion) as they breach principles of professional fairness. Were the competitor to copy several items or the general aesthetic of your collection, these copies might also fall under the umbrella of non-confusing imitation by parasitic unfair competition.

Last but not least, fashion items might be protected by copyright. The concrete realization of an idea which meets the validity requirements of “creative character” and “artistic value” can be protected under Italian copyright law. Again, no paper registration is needed: similar to design law, for copyright protection the creation must be disclosed to the public, and case law has found that fashion shows qualify as “disclosure” as they may attract experts in the sector and are popular events.

The appeal of using copyright as the means to acquire IP protection lies in the fact that it lasts up to 70 years after the creator’s death. However, although haute couture and high-concept fashion may be considered artistic works, Italian courts have rarely found designs of fashion or clothing products worthy of copyright protection. In Italy, the best-known, recent case is related to the iconic “Moon Boots”. In exceptional Court of Milan decisions the judges ruled that the boots met the requirement of artistic value to justify copyright protection.

Given the (potential) duration of copyright protection and the tendency in the fashion industry to be inspired by the past in its “innovating” capacity, remind your designers and product developers to take extreme care when sourcing competitors’ old archives. Or, at least, remind them that a minimum of diversification will often suffice to provide the garment with different details and hence render it therefore original and free of copyright infringement.

Should the above IP guidelines not suffice, then one way forward is to do as Monsieur Balenciagadid: forbid journalists and attendants to take photographs or sketches of the new designs presented by the fashion house. While this might be a temporary solution in preventing copycats, in this digital era the social media and PR department are likely to be highly skeptical about this.

2. Fashion show: a work of art?

The fashion show during Fashion Week is the annual showcase for most high-profile fashion brands; a real advertisement for fashion houses and designers, which often includes real works of art.

To mention some impressive examples, one cannot fail to mention Chanel’s Haute Couture shows at the Grand Palais in Paris. These fashion shows gain attention every year and are praised for their elaborate set designs, on one occasion transforming the Grand Palais into a bombed-out theatre (FW13); an extravagant, fully-functioning supermarket (FW14); or a Parisian boulevard as the stage for a feminist protest (FW15). Models walked the runway wearing sophisticated and intricately designed garments, showcasing Karl Lagerfeld’s creative vision for the collection. The fusion of art, fashion and storytelling in this fashion show contribute in honouring the Maison’s iconic status in the fashion industry.

As designers take inspiration from competitors’ collections, so do organizers and stylists from other fashion shows. This might be the case of Coperni for its 2023 runway show, where Bella Hadid, in the middle of the catwalk, was dressed with a white “liquid” dress made of cotton fibres and synthetic materials sprayed on by robots. A real artistic exhibition which is highly reminiscent of Alexander McQueen’s 1999 show, where the dress of another model, Shalom Harlow, was painted by robots. Was it a tribute to Alexander McQueen or copyright infringement?

According to the Berne Convention, copyright protection covers “literary and artistic works” where this expression includes “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. To enjoy copyright protection, there must always be a creative spark. The organizational or logistical nature of the event, albeit sensational, cannot be protected.

While the performance itself may not be protected by copyright, specific elements such as unique designs and creative expressions within it could potentially be protected by copyright. Should the thresholds for copyright protection not be met, unfair competition might again be a better resort.