It is far from our wish to add to the general hint of ridicule which has accompanied the reports of the former Minister for Justice Michael McDowell SC and Richard Nesbitt SC, chairman of Arnotts, as they argued over the finer points of knitwear on behalf of Karen Millen and Dunnes Stores respectively.
However, this case, in which judgement has been reserved, is the first major test of the application of a 2002 European Union Directive to the fashion industry. Other, similar, cases are pending its outcome. If the Directive is found to protect Karen Millenâs knitwear design then other retailers at the budget end of the fashion spectrum (Penneys springs immediately to mind) may find themselves and their business model in hot water.
It is worth considering for a moment the broader question as to whether the implementation of intellectual property protections for clothing designs is in the interests of the public or even the fashion industry as a whole.
The New York Times reported in April on a study by two law professors, Kal Raustiala of the University of California, Los Angeles, and Chris Sprigman of the University of Virginia. In it they consider the âpirate paradoxâ?. The key to this paradox is that there are very weak IP protections for fashion designs. Yet the industry thrives, and continually produces new and innovative designs.
The authors argue that copying may well be one of the engines of innovation in the fashion business- that each spot on the fashion foodchain (crudely, from designer to high-street to budget) looks down on the next and that people will abandon clothes sooner than would otherwise be the case if they see the next layer down starting to wear them.
Thus, in seeking to freeze copying (or âhomagesâ as the industry frequently seems to prefer terming it) for three years the EU Directive may have the unintended consequence of stifling innovation in European fashion.
One final thought occurs. During the course of the hearing it was suggested that Karen Millenâs designers themselves may have been inspired by others further up the foodchain. It is possible that, even if successful, High Street chains may rue setting a precedent which could come back to bite them.