The laws protecting the ever dynamic and well-evolving fashion industry are but a few and largely inadequate to cover grounds. Everyone under the practice of law has resorted to the laws that guide intellectual property in Nigeria. These laws are:
- The Copyright Act
Alongside protecting other areas, this act is made to protect artistic creations which Fashion Designs fall under by virtue of Section 1 of the Copyright Act. The lacuna in this act lies in Section 1(3), which states that “An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process”.
The bulk of the fashion industry professionals are in it for business, and to make money off their mastery, this act does not protect them. The United States of America Copyright Act may not be there either, but it recognizes fashion designs as it provides that “if and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article“. Thus, this legislation goes beyond the multiplicity of the creation but the uniqueness of the creation before conferring it with the Copyright protection.
Furthermore, another evolving area of the fashion industry is one that deals with our olfactory sense which is the nose. Perfumes are also artistic creations even though it is still debatable. A novel decision was made in the L’oreal lancome v. Kecofa case where it was held that the smell of a perfume may, in principle, be copyrightable. Evidence was taken from both laboratories and it was confirmed that twenty-three 0ut of twenty-five principal chemicals in the fragrance formulation were the same. L’oreal sold its fragrance for 50 Euros and Kecofa sold for 5 Euros. This goes to prove that even fragrances can be pirated and are very deserving of Copyright protection.
The Nigerian Copyright Act needs amending that would include these evolving areas.
2. Patent And Design Act
This is one of the major focuses of this article. This Act aimed to protect fashion designs on two grounds, which are:
- It must not be contrary to public order or morality.
- It must be such that before the date of application for registration, it would not have been made available to the public anywhere and at any time by means of description. It must be new.
The first ground is very applaudable, but the second ground which is supposed to protect the ideas of these creatives did not exactly seem to cure the problem. It is important for these ideas to be first tested in the public domain to determine
their receptiveness before registration. Also, many fashion designers are not aware of this law and already have their designs on display in the market. What then is their remedy?
This Act needs amendments to meet with the times. Fashion designers with old designs already in the market can be remedied just the way the United States of America tried to remedy theirs, although limited to one year of release.
The U.S Design Patents Act protects product packaging which is a very important element of today’s fashion industry and product design. In order to protect a product design, or in this case a fashion brand, the owner must prove that consumers associate the design with the brand as seen in the Louboutin and YSL case.
Just recently, the Annual African Magic Viewers Choice Award (AMVCA) was hosted, and we could see how fashion designers outdid themselves to show their creativity. Toyin Lawani styled Ifuennada in a Met Gala worthy outfit that had masks all over the Skirt of the dress. This is something that has never been seen before, but can no longer be registered under the Nigerian Patent and Design Act because it has been made available to the public.
3. Trademarks Act
Trademarks are used to identify and distinguish the source of the goods of one party from those of others in the course of trade. On registration of these marks, signs, symbols or logos, they become exclusive to that brand alone. How then is this relevant to fashion design piracy? In the fashion industry, we see how jackets, shawls etc., are imprinted with no other design but logos. Examples of brands that have done this are Fendi, Burberry and even our own Nigerian designer Ashluxe. No other brand can try to pirate their designs of these pieces for obvious reasons except in cases of “counterfeiting” which is slightly away from our discourse. This is one reason why Trademark registration is important.