Fashion Law
Definition and Scope
Fashion law is an interdisciplinary field of law that addresses legal relationships and disputes arising within the fashion industry, intertwined with various branches of law. It encompasses numerous legal domains including intellectual property law—particularly trademarks, designs, patents, copyrights—as well as competition, commercial, consumer, labor, and advertising law. The short-lived and seasonal nature of fashion products has revealed the need for specific regulations in this area, as traditional intellectual property protection mechanisms often fall short.
Fashion law is not limited to the protection of designs; it also includes legal measures aimed at preventing violations of designers’ and brands’ rights. It strives to prevent imitation of designers’ works while also protecting consumers from deception.
Problems in the Protection of Fashion Designs through Intellectual Property Rights
The rapidly changing and seasonal nature of the fashion industry makes it difficult for established intellectual property protection mechanisms to fully address the needs of designers. Consequently, structural issues arise in the protection of fashion designs under intellectual property law.
Trademark Law and Trade Dress
Under trademark law, protection is granted only if a product bears a distinctive sign; however, the product itself—particularly its design—is not protected unless it is registered. To overcome this gap, fashion designers often attempt to secure indirect protection by adding a brand logo or label to their products. In U.S. law, certain fashion designs can be protected under the doctrine of “trade dress.” However, this requires the product to have acquired secondary meaning in the marketplace—i.e., to have become associated in the minds of consumers with a particular brand. This condition is typically only met by major fashion houses with high brand recognition.
Patent Law
Patent protection may be considered for fashion designs that incorporate technical or functional features—for example, fabrics that are waterproof or fire-resistant. However, patent protection is impractical for fashion items that are primarily aesthetic, artistically driven, and intended for short-term market circulation. Additionally, the lengthy and complex nature of the patent application and approval process does not align with the fast-paced cycle of the fashion industry.
Design Law
Design law aims to protect new and distinctive designs. However, such protection usually depends on formal registration. Unregistered designs are granted limited and short-term protection under general legal provisions. Since the registration process is time-consuming and costly, designers—especially those engaged in seasonal production—frequently rely on unregistered design protection. This, in turn, weakens the effectiveness of legal protection mechanisms.
Copyright Law
In Turkish law, fashion designs may potentially be protected as works of fine art under the Law on Intellectual and Artistic Works No. 5846 (Fikir ve Sanat Eserleri Kanunu,FESK ). However, not every design automatically qualifies for this status. In order to be considered a copyrightable work, a design must possess artistic quality, aesthetic value, and reflect the unique characteristics of its creator. According to Turkish case law, designs that result from genuine artistic effort, go beyond simple creativity, and stand out in terms of aesthetics can be classified as works of fine art. Designs that do not meet these criteria cannot benefit from copyright protection under FSEK.
The Place and Development of Fashion Law in International Legal Systems
European Union Law
In European Union (EU) law, the protection of fashion designs is mainly regulated under the Community Design Regulation (Council Regulation (EC) No 6/2002). The EU system offers protection for both registered and unregistered designs. Registered designs can be recorded with the European Union Intellectual Property Office (EUIPO) in five-year increments, up to a maximum of twenty-five years. Unregistered designs are protected against deliberate copying for three years from the date they are made publicly available.
According to case law of the Court of Justice of the European Union, the main criterion for protectability of a fashion design is that it must possess distinctive character and be new in a publicly accessible way at the time of commercial release. In the case between Yves Saint Laurent and Ralph Lauren, the French court ruled in favor of YSL based on copyright infringement, design right violation, and unfair competition—making it a landmark decision in European fashion law. The Court of Justice of the EU’s decision regarding Louboutin’s iconic red-soled shoes also set an important precedent, recognizing that fashion designs may be protected as trade dress.
United States Law
In U.S. law, the protection of fashion designs is mainly achieved through three legal doctrines: design patents, copyrights, and trade dress. However, there is no specific legislation dedicated solely to fashion designs. To fill this gap, a bill titled the “Innovative Design Protection and Piracy Prevention Act” was introduced in 2010 but was never enacted.
In the U.S. Supreme Court case Star Athletica v. Varsity Brands, it was held that under the “useful article” doctrine, a fashion design can be copyrighted only if its aesthetic elements are separable from its functional elements. Additionally, in lawsuits brought by Louboutin in the U.S., it was acknowledged that the red sole had become associated with the brand and could therefore be protected as a distinctive trade dress.
In the U.S. system, trade dress protection is contingent upon the product being recognized by consumers as originating from a specific source. In the case brought by Converse before the U.S. International Trade Commission regarding its Chuck Taylor design, it was emphasized that protection is only available if the design has been used in a long-standing, distinctive, and promotional manner.
Protection of Fashion Designs Under Turkish Law
In Turkish law, the protection of fashion designs is primarily governed by the Industrial Property Law (SMK) and the Law on Intellectual and Artistic Works (FSEK). However, there is no specific legislation directly regulating fashion law. As a result, judicial precedents and scholarly opinions play a decisive role in the protection of fashion designs.
Protection Under Design Law
Fashion designs are considered as designs under the IP Law to the extent that they exhibit "features concerning the external appearance of a product or part of a product." According to the SMK, new and distinctive designs can be registered with the Turkish Patent and Trademark Office and protected for up to twenty-five years, in five-year renewable terms.
Unregistered designs are also protected under Article 69/2 of the SMK for three years from the date they are made public, but only against deliberate copying. However, the short-lived and fast-paced nature of the fashion industry renders the registration process costly and time-consuming. Therefore, in practice, unregistered protection is often preferred in the sector.
Protection Under Copyright Law
Fashion designs may be protected as works of fine art under Article 4 of the FSEK. However, not every design qualifies. According to the Court of Cassation, for a design to be considered a work of fine art, it must:
- Go beyond simple creativity,
- Appeal to aesthetic sensibilities,
- Serve an artistic purpose beyond mere functionality,
- Reflect the personality of its creator.
- Copyright protection under FSEK arises from the moment the work is created and does not require registration. It therefore offers automatic and longer protection—lasting for the creator’s lifetime and 70 years after death.
Dual Protection and Practical Challenges
It is possible for fashion designs to be protected under both design and copyright regimes. However, the applicable legal framework depends on the nature of the dispute. While protection under SMK is contingent on registration, protection under FSEK is unregistered and longer in duration. However, since the protection requirements and scopes differ, conflicts and ambiguities often arise in practice.
Current Debates and Future Outlook in Fashion Law
The unique and dynamic structure of the fashion industry has sparked serious debates about the applicability of traditional intellectual property regimes to this field. There are differing views on the scope, duration, form, and adequacy of legal protection, leading to significant uncertainties and legal gaps in practice.
Legislative Gaps and Compliance Issues
The absence of specific regulations for fashion designs in both national and international legal systems hampers the protection of designers’ rights. As a result, existing legal frameworks (particularly those governing trademarks, designs, and copyrights) are applied to the fashion sector by force, often producing limited and conflicting outcomes.
Since Turkish law also lacks a dedicated legal framework in this area, protection claims heavily rely on case law, and courts assess the nature of each design on a case-by-case basis. This reduces predictability and leads to inconsistency in judicial decisions.
Registration Processes and Practical Ineffectiveness
Given the seasonal and short-term nature of fashion designs, the lengthy and costly registration processes are often deemed impractical by the industry. Designers are reluctant to incur registration expenses for products whose market success is uncertain, leaving many designs unprotected. Consequently, there are calls for strengthening unregistered design protections in Turkish law, similar to the EU model.
Debates on Distinctiveness and Aesthetic Value
Whether a fashion design qualifies for copyright protection is frequently debated based on criteria like “distinctiveness” and “aesthetic value.” However, the subjective nature of these standards makes it difficult to draw a clear line on which designs reflect artistic value and the designer's individuality. Courts evaluate these aspects on a case-by-case basis, creating barriers to consistent application.
Future Directions
A key future development in fashion law is expected to be the enactment of specific legal regulations tailored to the industry. Efforts like the previously proposed (but unenacted) “Innovative Design Protection and Piracy Prevention Act” in the U.S. reflect this need. Similarly, in legal systems such as those of Europe and Turkey, there is growing academic and industry demand for more effective, flexible, and low-cost protection mechanisms.
Conclusion
Fashion law is a legal field that current legal systems have not yet fully addressed, with its own unique challenges and needs. Existing protection regimes do not always align with the dynamic nature of fashion designs. As such, the field is evolving in light of case law and academic discourse. To ensure legal clarity and effective protection of designers' rights, the development of industry-specific legal norms is necessary.
