ADR in Fashion Part 1/2

By Veronika Válová

Fashion creations are not protected under traditional forms of intellectual property such as trademarks, patents or copyrights. Designs fall within the category of creative art works together with music records, paintings, books, movies and other forms of expression. [1]

Alternative dispute resolutions offer flexible, non-confrontational option with inclusion of experts possessing the knowledge of the proceedings and area of dispute and on the top allow both parties to actively participate in resolving the dispute. There are various mechanisms and practices to be used such as mediation and arbitration. [2]Arbitration is a private mechanism, where objective standard is followed (applicable law) and final judgement is binding on both parties. Mediation on the other hand consist of parties to the dispute and mediator who plays neutral role and try to navigate both parties to negotiate solution. In this form of ADR is up to parties what outcome will be and proceedings are voluntarily and parties are more engaged in negotiations.[3]

In the cases of dispute regarding the fashion industry, it is very important to mention that speed of such proceedings is priority. Fashion is changing very fast and court proceedings can be costly and take lot of time. ADR gives an opportunity to parties to chose judges and experts with knowledge of their fields. It is very hard for judges to decide on dispute without any knowledge but as well parties might feel less understood having a judge with healthcare expertise deciding on the topic of fashion industry, especially when lot of money and reputation is involved.

There are initiatives to create an ADR related organ, which would focus of IP infringement cases related to fashion industry. Issues such as copying fashion designs to produce fast fashion pieces or anyhow profit from ideas of other brands, would be possible to black list and ban from advertising in TV or magazines. [4]The Council of Fashion Designers of America, Inc. ("CFDA") is focusing on legal protection of intellectual property of fashion designs currently in the US. The CFDA used some of techniques of ADR in the past cases and there is a discussion about forming an ADR related programme within The Council.[5]

In conclusion, fashion industry grows exponentially and intellectual property rights infringement will remain problem. Past litigation cases some brands experienced proved that it can harm the business and it is not a solution in fast changing world of fashion. ADR mechanisms suits to conflicts related to IP due to effectiveness, time consumption, involvement of parties and cost. Therefore, future of the Devil wears Prada disputes stick to the ADR.

[1] OSCOLA 4th ed. Denisse F Garcia, 'Fashion 2.0: It's Time for the Fashion Industry to Get Better-Suited, Custom-Tailored Legal Protection' (2018) 11 Drexel L Rev 337

[2] ibid

[3] ibid

[4]Erica S Schwartz, 'Red with Envy: Why the Fashion Industry Should Embrace ADR as a Viable Solution to Resolving Trademark Disputes' (2012) 14 Cardozo J Conflict Resol 279

[5] Erica S Schwartz, 'Red with Envy: Why the Fashion Industry Should Embrace ADR as a Viable Solution to Resolving Trademark Disputes' (2012) 14 Cardozo J Conflict Resol 279