An evaluation of the ability of intellectual property laws to protect fashion creations

Abstract: Art comes in different forms ranging from paintings, to music to literature among others. These art forms have, for decades, found protection through intellectual property laws. Intellectual property protects authors, creators and inventors from any form of exploitation of their works and it gives them the sole monopoly to enjoy the profits that come from commercialising their work for specific periods of time. Fashion law is also a form of art just like the ones mentioned above. It is a result of creative expression brought alive by the way the fabric is combined, the colour pattern, the embroidery and the way the stitching is made which shows the designers’ unique style. Despite this fact, fashion design does not have a prominent place in intellectual property law. This research analyses what makes fashion design protection so difficult to protect as well as how fashion designers can use the current intellectual property laws to their advantage. The research looks at the American legal system to analyse why it failed in creating cohesive laws that can protect fashion designs. The research goes on to compare this failure with the success of member countries of the European Union which have had success in providing adequate protection for their designs. A further analysis will be done of the South African fashion industry where the research will consider how South Africa has dealt with fashion design protection. The research will conclude that fashion law is much more complicated than music, literature or other art forms. The research discusses what makes fashion so complicated and gives recommendations on how these issues could be tackled in order to have uniform intellectual property laws that include fashion designs.LL.M. (Intellectual Property Law