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Lapatoura, Ioanna (2024) Intellectual property infringement in fashion: insufficient enforcement and how blockchain may change the landscape. PhD thesis, University of Nottingham.

PDF (Thesis with post-viva corrections.) (Thesis - as examined) - Repository staff only until 21 November 2025. Subsequently available to Repository staff only - Requires a PDF viewer such as GSview, Xpdf or Adobe Acrobat Reader Download (4MB)

Abstract

Intellectual property infringement in fashion, or else the unauthorised copying of fashion designs that may enjoy trade mark, copyright or design law protections, is a rapidly growing global phenomenon. Despite current efforts to minimise it, design copying appears to be the fashion sector’s longstanding pandemic. Yet it is far from harmless, not just to fashion designers and their intellectual property (IP) rights, but also to countries’ innovation, creativity and economic growth. Despite the existence of IP protection and enforcement frameworks that fashion designers could rely upon against unauthorised uses of their works, infringers seem to be unaffected and in fact, continue to ‘free ride’ and capitalise on the efforts of fashion innovators. At the same time, customs and border enforcement authorities serve to detect and confiscate IP infringing products. However, the phenomenon persists, notwithstanding the efforts already being made to tackle this threat.

The purpose of this thesis is twofold: Firstly, to increase understanding regarding the root causes of the IP infringement phenomenon in fashion, by examining the IP law protection and enforcement regimes in the UK, EU and US. These selected jurisdictions constitute some of the largest fashion economies worldwide and at the same time, experience a high volume of fashion-related infringing goods and counterfeits crossing their national borders, meaning that they are major targets for copyists. In doing so, this author attempts to establish a correlation between the high levels of infringement and a potential difficulty for designers to secure IP protection under the existing regimes, which could partially interpret the exacerbated infringement phenomenon. Given that a series of IP rights are available for the protection of different types of fashion designs across the three jurisdictions, the thesis strives to interpret the high levels of infringement as being caused due to a potential insufficiency in IP enforcement and/or remedial awards upon litigation. Through an original qualitative case study that analyses fashion-related IP case law in the UK and US territories, the findings confirm low levels of IP litigation in fashion. The thesis underlines that long procedures and time constraints, excessive litigation costs, insufficient remedial relief to the needs of a fast-paced industry like fashion, a lack of awareness of available legal protections by a segment of fashion industry actors, social norms, as well as a desire to preserve a good brand image, are among the potential contributing factors to an unwillingness for enforcement through the traditional litigation route, both by small and large designers and fashion entities.

Out-of-court settlements constitute an alternative path for IP dispute resolution among fashion players, yet they may be unfavourable to smaller fashion brands or emerging designers with little negotiating power against larger fashion brands. Other extra-legal enforcement solutions, powered by social media, are typically quicker and less costly than litigation, yet do not come without any flaws. Despite the existence of a variety of IP enforcement routes, the rate of fashion-related infringement continues growing. Hence, it is argued that both traditional and non-traditional enforcement frameworks are likely underutilised or partly ineffective. As a result, existing laws are arguably not given their full effect and copyists have little to worry about.

The second purpose of this thesis is to explore whether there is a better way for fashion designers to protect their valuable IP assets, and whether governments’ and regulators’ anti-infringement endeavours could somehow be enhanced. In this context, this thesis explores the potential role of blockchain technology, an emerging distributed ledger technology, in this battle. Having identified the specific enforcement hurdles experienced in fashion, the author proposes blockchain-based use cases, tailored to the fashion business model, that could be combined with the existing enforcement approaches so as to better address them. Both are aimed at maximising the overall effectiveness of IP enforcement, as well as minimising IP infringement in fashion, but each of them approaches IP enforcement from a completely different angle. This author draws a line between infringers whose identities are known or unknown, proposing adoption of each blockchain use-case by different stakeholders. While blockchain technology may not be the panacea for all contributing factors to the high levels of IP infringement in fashion, its proposed applications can act as promising complementary tools in this longstanding battle.

Item Type:	Thesis (University of Nottingham only) (PhD)
Supervisors:	Derclaye, Estelle Torremans, Paul
Keywords:	ip, intellectual property, infringement, fashion, blockchain
Subjects:	K Law > KD England and Wales
Faculties/Schools:	UK Campuses > Faculty of Social Sciences, Law and Education > School of Law
Item ID:	78184
Depositing User:	LAPATOURA, IOANNA
Date Deposited:	22 Jul 2024 04:40
Last Modified:	22 Jul 2024 04:40
URI:	https://eprints.nottingham.ac.uk/id/eprint/78184

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