This Article explores the role of trademark law in the fashion industry. For years, the fashion industry has drawn legal scholars’ attention for its maintenance of creative endeavors within a legal environment that offers limited protection against design copying. Some influential legal studies argued that copying paradoxically helps the fashion industry as unregulated copying stimulates the creation of new designs. Yet, this Article observes that the driver for new design creation is already built into the contemporary fashion industry. The question should rather be directed at who creates fashion and how the role of the law, if any, aids the subject and mechanism of making fashion. This Article illuminates on the significant role that established fashion houses (so-called luxury companies or high-end designers) play in making fashion. This Article also suggests that these fashion houses require brands to make fashion. On this ground, this Article then demonstrates the capacity of trademark law to protect established fashion houses’ brands. The Article begins in Part One with an observation of the contemporary fashion industry and elaborating on the social mechanism of making fashion. It argues that the creation of design does not simply make fashion until it is adopted by majority of people. This Article uses the term “fashion innovation” to refer to adopted designs, distinguished from the created designs that some legal scholars called “innovation.” What trademark law helps is “fashion innovation,” that is, the law helps the adoption of new designs created by established fashion houses. An adoption is a communication process that engages the brand, which, I show, works as a semantic mechanism of making fashion innovation. Part Two and Three unfolds how trademark operates to protect brands of established fashion houses throughout case law analysis. Part Two examines the capacity of trademark law in governing iconic designs associated with established brands, which, under copyright law, would receive limited legal protection. Part Three identifies the capacity of trademark law to govern consumer associations with established brands. After all, it is the interplay among trademark law, brands, and innovation that supports the thriving fashion industry.
Dayoung Chung, Law, Brands, and Innovation: How Trademark Law Helps to Create Fashion Innovation, 17 J. Marshall Rev. Intell. Prop. L. 492 (2018)