Sustainable Fashion and IP: Exploring How IP Law Can Promote Sustainable Practices In The Fashion Industry

Article by Chinonso Izundu

INTRODUCTION

The fashion industry, a dynamic and ever-evolving sector, has been at the forefront of global culture, economy, and creativity. However, this industry is also one of the most resource-intensive and environmentally harmful, contributing significantly to pollution, waste, and overconsumption. Specifically, the fashion industry is responsible for 8-10% of global carbon dioxide emissions (predicted to rise by 50% by 2030), 20% of global water usage (10,000 liters of water needed to produce 1kg of cotton) and significant wastage from overproduction and disposal, with around 87% of textiles destined for landfills or incineration (10,000 items every 5 minutes). The fashion industry’s environmental impact extends beyond production; it affects ecosystems, water sources, and air quality through microfiber and microplastic pollution from cloth washing.

In recent years, there has been a growing movement towards sustainable fashion, which seeks to minimize the environmental and social impacts of clothing production and consumption. Intellectual Property (IP) law, a critical component in fostering innovation and creativity, has the potential to play a significant role in promoting sustainable practices within the fashion industry. This article explores the intersection of sustainable fashion and IP law, examining how IP can be leveraged to encourage environmentally and ethically responsible practices in the fashion industry.

THE CONCEPT OF SUSTAINABLE FASHION

Sustainable fashion encompasses a range of practices aimed at reducing the environmental and social impacts of the fashion industry. This includes the use of eco-friendly materials, ethical labor practices, recycling and upcycling of garments, and the reduction of waste throughout the supply chain. The goal of sustainable fashion is to create a system in which clothing is produced, consumed, and disposed of in a way that does not deplete natural resources or harm the environment. As consumers become more aware of the ecological footprint of their clothing choices, there is an increasing demand for brands that prioritize sustainability.

INTELLECTUAL PROPERTY IN THE FASHION INDUSTRY

Intellectual property law, which includes patents, trademarks, industrial designs, copyrights, trade secrets, etc., is designed to protect the creations of the mind, giving creators exclusive rights to their inventions, designs, and brands. In the fashion industry, IP plays a crucial role in protecting the originality and identity of fashion brands and designers. For instance, trademarks protect brand names and logos, copyrights protect original designs and prints on clothing, and patents protect new inventions or processes in garment manufacturing. While IP is traditionally viewed as a tool for protecting business interests, it also has the potential to promote sustainability in fashion.

PATENTS

One of the key areas where IP law can promote sustainability in fashion is through the patenting of innovative, eco-friendly materials. The development of sustainable fabrics such as organic cotton (cotton that is grown organically from non-genetically modified plants, and without the use of any synthetic agricultural chemicals such as fertilizers or pesticides), recycled polyester (reused polyester) and biodegradable materials (materials that get decomposed easily by natural circumstances), requires significant investment in research and development. By securing patents for these materials, innovators can protect their investments and encourage further innovation in sustainable textiles. Moreover, patent protection can incentivize companies to invest in the development of new materials that have a lower environmental impact, thus contributing to the overall sustainability of the industry.

INDUSTRIAL DESIGN

An industrial design (often referred to, in some jurisdictions, as “design patent”) refers to the aesthetic form and feature of an item. It deals with protecting the visual design of objects – the unique appearance of a product rather than what it’s made of or how it works (as in patents). Thus, industrial design (right) or design right protects a product’s shape, texture, pattern, color or ornamentation. These designs could apply to various aspects of fashion, such as clothing, footwear, accessories, and textiles. For example, the unique cut of a dress, the pattern on a handbag, or the shape of a pair of shoes can be considered industrial designs if they offer a distinctive, original look and contribute to the product’s overall appeal.

Industrial design rights can promote sustainability in the fashion industry by encouraging designers to create innovative, eco-friendly products that stand out in the marketplace. When a designer holds exclusive rights to their unique creations, it incentivizes them to explore sustainable materials and production methods, knowing their designs are protected from copying or unauthorized reproduction.

TRADEMARK

Trademarks are a powerful tool for fashion brands to establish their identity and reputation in the market. In the context of sustainable fashion, trademarks can be used to signal a brand’s commitment to ethical and environmental responsibility. Brands that prioritize sustainability can leverage their trademarks to differentiate themselves from competitors and attract environmentally conscious consumers.

For instance, trademarks can be used to certify that a brand meets certain sustainability standards, such as fair trade practices, the use of organic materials, or carbon-neutral production processes. These certifications can build consumer trust and loyalty, encouraging more brands to adopt sustainable practices. Additionally, trademarks can help combat greenwashing – where companies falsely claim to be environmentally friendly. By protecting genuine sustainable brands, trademarks can ensure that consumers are not misled by false advertising, thereby promoting transparency and accountability in the industry.

COPYRIGHT

Copyright law protects original works of authorship, including fashion designs, prints, and patterns. In the context of sustainable fashion, copyrights can play a crucial role in promoting sustainable fashion by protecting original designs, encouraging innovation, and supporting eco-friendly practices. Designers can use copyright to safeguard unique patterns, prints, and artistic elements, ensuring fair recognition and financial reward. This incentivizes designers to invest in sustainable solutions like upcycled or biodegradable materials, as they retain control over their creations.

Furthermore, copyright can facilitate the sharing of sustainable design practices through licensing agreements, where designers allow others to use their copyrighted works in exchange for royalties or other forms of compensation. This can create a more collaborative environment in the fashion industry, where sustainable practices are shared and adopted more widely.

TRADE SECRET

Trade secrets protect confidential business information that provides a competitive edge, such as manufacturing processes, formulas, and supply chain strategies. In the context of sustainable fashion, trade secrets can be used to protect confidential innovative processes that reduce environmental impact. For example, a company that develops a new method for dyeing fabrics using less water and energy can keep this process as a trade secret, giving them a competitive advantage while also contributing to sustainability.

CHALLENGES AND OPPORTUNITIES

While IP law offers significant opportunities to promote sustainability in the fashion industry, there are also challenges that need to be addressed. One of the main challenges is the tension between protecting innovation and ensuring accessibility. Strict IP protection can sometimes limit the sharing of sustainable technologies and practices, which is essential for widespread adoption. Therefore, there is a need for a more flexible approach to IP in the context of sustainability, where collaboration and open innovation are encouraged.

Another challenge is the enforcement of IP rights in the fashion industry. Counterfeiting and unauthorized copying are prevalent issues that can undermine the efforts of sustainable brands. Strengthening IP enforcement mechanisms and raising awareness about the importance of IP protection can help address these challenges.

Other challenges include consumers’ patronship of fast fashion brands; fragmented or complex supply chains; high costs of production and obtaining IP protection; lack of consumer awareness of the environmental and social impact of their fashion purchases; lack of knowledge of IP rights; and inconsistent regulations.

Despite these challenges, the intersection of sustainable fashion and IP law presents numerous opportunities, which include innovative sustainable materials, circular economy models, tech solutions for transparency, growing demand for eco-friendly products, partnerships, economic benefits for ethical brands, and supportive policies. Addressing these challenges can drive meaningful change while fostering growth.

CONCLUSION

Sustainable fashion and IP law are two areas that, when combined, have the potential to drive significant positive change in the fashion industry. IP law can be a powerful tool for promoting sustainable practices by protecting innovative materials, ethical branding, eco-friendly designs, and sustainable processes; as well as contributing to the global effort to combat climate change and promote social equity. However, achieving this potential requires a balanced approach to IP that encourages collaboration, transparency, and accessibility. As the fashion industry continues to evolve, the role of IP in promoting sustainability will become increasingly important, offering a path towards a more sustainable and ethical future for fashion.

REFERENCES:

1. “From Fast Fashion to Building a Sustainable Brand: The Journey of Czech Entrepreneur Linda Havrlíková” (2024). Accessed at https://business.ideaspowered.eu/resources/success-stories/fast-fashion-building-sustainable-brand-journey-czech-entrepreneur-linda?fbclid=IwY2xjawGwaJlleHRuA2FlbQIxMQABHTMGKynlO4koc4-s0UOKHlNKchLemC3HojDo8yRe-t7I60tF5K3K6N-r1A_aem_NKe_7cMs2-TNLQAPce136A

2. UN News. “UN Launches Drive to Highlight Environmental Cost of Staying Fashionable” (2019). Available at https://news.un.org/en/story/2019/03/1035161

3. Niinimäki K et al.. “The Environmental Price of Fast Fashion” (2020 ) 1 Nature Reviews Earth and Environment: 189 -200.

4. Quantis. “Measuring Fashion: Environmental Impact of the Global Apparel and Footwear Industries Study” (2018).

5. UK Research and Innovation (UKRI). “From Catwalk to Landfill: Tackling Waste in the Fashion Industry” (2022). Available at https://www.ukri.org/news-and-events/responding-to-climate-change/topical-stories/from-catwalk-to-landfill-tackling-waste-in-the-fashion-industry

6. H Adams. “How Much Water Do You Wear, Asks GAP”. Sustainability Magazine (2021).

7. Moazzem S et al. “Environmental Impact of Discarded Apparel Landfilling and Recycling” (2021). Resources, Conservation and Recycling: 166 105338.

8. G Allon, “The Fashion Industry’s Dirtiest Secret”, Business Insider (2022). Available at https://www.businessinsider.com/fast-fashion-christmas-shopping-clothes-returns-shein-zara-waste-mountain-2022-12?r=US&IR=T

9. Kvasnicka J et al. “Textile Washing Conveys SVOCs from Indoors to Outdoors” (2021). 55 Environmental Science and Technology: 12517 -27.

10. Legal Foundations. “Sustainable Fashion Startups: IP and Trademark Strategies in the UK” (2024). Available at https://legalfoundations.org.uk/blog/sustainable-fashion-startups-ip-and-trademark-strategies-in-the-uk/

11. R Singh. “Sustainable Fashion And Intellectual Property Rights”. Available at https://fashionlawjournal.com/sustainable-fashion-and-intellectual-property-rights/

12. G H Stanton, C Ganin, “Upcycled Goods: How Fashion and Apparel Brands Can Promote Sustainability While Protecting Brand Value” (2021). Available at https://perkinscoie.com/insights/update/upcycled-goods-how-fashion-and-apparel-brands-can-promote-sustainability-while

13. F D Passoni, M E Aldescu. “Fashion, intellectual property (IP) & Sustainability – Best practices, interactions and strategies” (2023). Available at https://www.4ipcouncil.com/research/fashion-intellectual-property-ip-and-sustainability-best-practices-interactions-and-strategies#

14. I Calboli. “Upcycling, Sustainability, and IP: What It Means for the World of Fashion” (2023). Available at https://www.wipo.int/wipo_magazine_digital/en/2023/article_0022.html

15. C Skidmore. “Sustainable fashion: A turning point for textiles” (2024). Available at https://www.openaccessgovernment.org/sustainable-fashion-a-turning-point-for-textiles/184978/

16. K Fong. “Sustainability and IP: a match made in heaven?” Available at https://www.inhouselawyer.co.uk/legal-briefing/sustainability-and-ip-a-match-made-in-heaven/

17. M Reid, M McDonald, M D Lee and S Arbor. “Intellectual property rights in fashion” (2023). Available at https://www.dlapiper.com/en/insights/publications/2023/03/intellectual-property-rights-in-fashion