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IP protection has become as indispensable a part of the fashion business as the little black dress, says Richard Brass.

Not so long ago, the tools for making it as a fashion designer were simple. A good pair of scissors, a Bohemian garret in one of the livelier parts of town and a head full of off-the-wall ideas were all you needed to have a decent crack at becoming the new Versace.

But surviving in the rag trade today, whether as an independent designer or an established label, requires another must-have item. Besides the bare creative necessities, no serious fashionista today would be seen dead without the services of a hard-hitting IP professional.

In the past, protecting your IP in the fashion business required little more than attaching a label to your products or, at the most extreme, emulating Louis Vuitton who, to discourage copying of his finely tooled luggage in the nineteenth century, took the unprecedented step of decorating his products with his own monogram.

But that was before copying monograms became as easy as switching on a scanner and fashion counterfeiting became a multi-billion-dollar trade. In Japan alone, where importing fake goods is legal provided they are for personal use, the world’s leading fashion names are losing an estimated $5.8 billion a year through the sale of fakes over the Internet. More than half the luxury branded goods sold over the net in Japan are counterfeits, and a network of mules has developed to carry them into the country from China or South Korea under the pretence that they are for personal purposes.

The counterfeiters are getting smarter, applying all the marketing skill of the legitimate manufacturers to shift more units. In China copies of Louis Vuitton bags that would sell for $2,000 are offered on the Internet for $800, a price far more likely to convince prospective buyers of their authenticity than a $50 tag.

Chasing the pirates is only one side of the story. Many elite designers are adopting a different approach to IP management, in effect pre-empting the counterfeiters by making their creations more cheaply available through deals with mass-market retail chains

The fashion houses are getting stuck in. Traders passing off fakes as the real thing are pounced on. Hermes alone employs a legal professional to spend up to 20 hours a week monitoring eBay for fakes, and another to keep an eye on Yahoo!. And, increasingly, the authorities are wading in, too. Italian police say they increased the hours spent cracking down on counterfeiters by 63% last year, and you buy fake designer goods on the Italian Riviera at the risk of an on-the-spot fine.

But chasing the pirates is only one side of the story. Many elite designers are adopting a different approach to IP management, in effect pre-empting the counterfeiters by making their creations more cheaply available through deals with mass-market retail chains. If you can get your genuine Julien Macdonald and Matthew Williamson at Debenhams department store and your Orla Kiely at Sainsbury’s supermarket, all at a knock-down price, there’s much less appeal in taking a risk on eBay to save a few pennies.

That route, at least, avoids the pitfalls of taking brand protection too far. Louis Vuitton did its image no favours when it sued Dooney & Bourke in the US Federal Court alleging that its ‘DB’ monograms looked too similar to its own venerable mark. The court threw the claim out. And Burberry, the British label whose distinctive check has become, to the company’s chagrin, the chosen badge of the ‘chav’ underclass, looked a tiny bit silly last year when it came down hard on the only store in Britain selling accessories for ferrets, which had been offering a two-inch ferret cap in Burberryesque check. Heavy-handed legal letters thumped on the mat and Britain’s ferrets were forced back into plainer headwear.

All of which shows that, like the world of fashion itself, brand protection is a mercurial business. IP services may have become as indispensable a part of the fashion arsenal as the little black dress but, like that particular item, they need to be used sparingly. Brought out at the right times, they can work wonders. But brought out too much and they can turn the sexiest designer into the dowdiest frump in town.

This article first appeared in IP Review, issue 14

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