Industrial Property Available To Fashion And Legal Protection Of The Sector

Industrial property available to fashion and legal protection of the sector

For the exploitation of their business, entrepreneurs and fashion professionals try to legally protect those assets that generate competitive advantages over other possible competitors in the sector. The main differentiating elements subject to protection are its brand, the rights that it entails and its designs. The set of these intangible assets is established as the greatest value of the fashion company. In this way, it is necessary to provide them with legal protection mechanisms. Thus, industrial property is one that each fashion businessman has in relation to their industry, based on the protection of, among others, the brand and industrial designs.

The necessary brand protection

Legal concept, functions and brand classes.

By virtue of the provisions of article 4 of Law 17/2001, of December 7, of Marks (hereinafter, Marks Law), it is provided that “all the signs may constitute marks, especially the words, including namesof people, the drawings, the letters, the figures, the colors, the shape of the product or of its packaging, or the sounds ”, which serve to distinguish in the fashion sector the products or services of a company from those of otherscompanies and are appropriate to be represented in the registration of brands so that they allow to determine “the clear and precise object of the protection granted to its owner”.

Before the Legislative Reform of December 27, 2018, which transposes the Directive (EU) 2015/2436 of the European Parliament and the Council, of December 16, 2015, related to the approach of the legislation of the Member StatesIn terms of brands, it was understood by brand “every sign susceptible to graphic representation that serves to distinguish in the market the products or services of one company from those of others”.

Therefore, a "closed" concept was established meanwhile, only those signs that could be represented graphically could be verified as marked. Currently, with the legislative harmonization carried out, the possibility of “all signs” (letters, colors, sounds …) can be constituted as marks whenever they are able to differentiate the product or service offered from competitors andIt can be represented in the brand registry, that is, in the Spanish Patent and Brands Office. For example, the Judgment of the Court of Justice of the European Union in matter C-163/16, of June 12, 2018, “Christian Louboutin” versus “Van Haren Schoenen”, determined that the brand recorded by Christian Louboutin is based onIn the red color (Pantone 18-1663TP) applied in the sole of its shoes, being perfectly recordable as a brand because it is a distinctive element.

For the brand to enjoy effective protection, its registration is necessary in the Spanish Patent and Brands Office . The brand registration recognizes its owner an exclusive right to use it in economic traffic, which entails that it is empowered to prohibit third parties from using identical and similar signs for identical or similar products in the fashion sector . This faculty is known by the doctrine as the so -called IUS prohibited . The granting of this right on the mark holds a duration of 10 years from the date of submission of the application in the Registry and must be renewed for successive periods of ten years .

In this way, the acquisition of a right on a mark does not originate by use, but for its effective record. It is of importance for the protection of the brand requesting registration when its marketing has been created and available.

If the brand registration is delayed, a third could request the registration of an identical or similar brand, for identical or related products between the time the trademark and the registration application begin to be used. In this case, the registration of the brand that had previously begun to be used would be prevented because, although its use is previous, the registration is not . The holder of the subsequent registration application legally could not undertake against the registration of the previously registered trademark.

Likewise, reference must be made to the renowned brand concept . The renowned brand is one that has a generalized degree of knowledge, that is, known by the general public. This recognition involves a restriction to the applications of identical or similar brands to the renowned brand, even when they designate different products or services. The scope of its protection extends to any kind of products or services, already affect the fashion sector or not. In this way, the brand considered renowned will enjoy absolute protection because the legislation would prevents the registration of brands that review products or services equal or different from those offered by the renowned brand. This is due to the risk of being used unfairly from the distinction or renown of the brand, or its reputation or image is harmed .

The functions performed by the brand in fashion are of great importance given the sector subject to analysis as it will mainly involve a distinction against competitors. It will also determine the reputation in the market and inform the quality and characteristics of the products or services it offers. All this, leads to use the brand as a means to acquire or conserve an image or reputation.

As stated, from the legal definition itself, the primary function of the same is extracted, distinguish the products or services of a textile company or business that are offered in the market of others that markets the competition, that is, determineits business origin to distinguish it from other competitors . Therefore, the consumer through the brand can know the origin of a certain product or service of other brands in the fashion sector .

In this way, the distinctive function of the brand establishes two scenarios. On the one hand, it differentiates the products and services that the company offers in the market of other competitors and, on the other hand, allows consumers to know the company that produces or offers them. For example, think of the decision of the fashion consumer when acquiring a garment that is the product of one brand or another. Through the identification of the brand, consumers are facilitated their choice.

Likewise, the reputation that the brand contributes to the company is of great importance. The brand constitutes an expression of prestige and business value. Therefore, another of the functions that the brand entails is to provide reputation for the products and services that the fashion company offers in the market. The doctrine knows this function as a reputation condenser . For example, the luxury fashion brands "Gucci" or "Dior", lead to themselves a reputation on the rest of the competitors, as well as on consumers, as they are an expression of high quality tradition, of an image of an image of an image ofBrand, and certain values.

Therefore, when a brand right is violated, this function is transgressed, since the reputation of a brand is easily harmed by the use of equal or similar signs to distinguish products and services that do not entail either quality, orBrand image, nor the values that hold the products or services of the business brand countervery.

As stated in the previously exposed functions, the brand reports the quality and characteristics of its products or services. Therefore, the brand has an informative function about the consumer and the fashion sector. Thus, the consumer relates the brand to the products or services it offers, waiting for a certain quality, characteristics or status with the acquisition of them.

Another of the functions performed by the brand in the field of fashion is the investment function. Companies invest in the brand in order to acquire or keep their image or reputation .

Through the exclusive right that the brand holder holds, through the IUS prohibEndi, it seeks to protect the investments made by the company to create and market the product to ensure a brand quality and image and thus preserve a certain market share .

The last of the functions that the brand entails in fashion is the so -called advertising function. By arranging the brand on the product in question, an advertising function is established since, in addition to providing it with distinction, the sign attracts the consumer . In this way the brand is promoted with the objective of favoring the acquisition of the products and services offered.

As indicated, attending to article 4 of the Marks Law, they can be constituted as a brand “The words, including the names of people, drawings, letters, figures, colors, shape of the product or its packaging, or the sounds ”or any combination of the above. Although, the precept exposes them as an exemplifying list, not as a numerus clausus. Therefore, other signs can be registered that can be represented in the registry of brands clearly and precisely. This fact affects the current marking classification.

Generally, the following kinds of brands are distinguished: denominative brands, graphic brands, mixed brands, three -dimensional marks, position marks, pattern marks, color marks, sound marks, movement marks, multimedia brands and holograms .

Although, in what interests the present study, certain types of brands of the statements will be more appropriate for the fashion sector, either by the strategic business value that they entail either by their visual character.

First, it is possible to refer to the denominative brands. They are those brands that are composed only of verbal elements such as words or letters in normal typography, that is, without graphic, disposal or color characteristics. For example, they will constitute "Zara" or "Rosá Clará" brands.

Second, figurative or graphic marks are established, composed exclusively of figurative elements. In addition, we can find the so -called mixed marks, that is, those that are composed of figurative elements and verbal elements together, or, those composed of verbal elements, but with colors, a characteristic typography and/or a special disposition of the elements of the elements .

Third, another very recurrent brand kind in fashion, are three -dimensional brands. These types of brands protect the configuration or differentiating form of the product, its container, or the container that contains it . Known three -dimensional brand example is the distinguished "Birkin" model bag of "Hermès" .

Although, it should be noted that those containers, packaging or characteristics of the product that when observing are related to the production company will be recorded as three -dimensional marks, either because they differ substantially from the usual configuration that these products normally have or by the fame they haveachieved in the fashion sector. In the exposed example, the consumer of this area is aware that the bag mentioned is prepared by “Hermès International S.A ”, known as" Hermès ".

Given the content of this research project, it should be asked why these products are registered as a brand and are not registered as an industrial design, when by their nature they should be inserted into this institution. It is a matter of protection. The registration of the characteristics of the product as a three -dimensional brand allows them to be renewed as many times as the brand holder wishes every ten years, while the designs have a maximum protection of twenty -five years .

On the other hand, through the brand, the concrete location of the product in which the sign is placed can also be protected. Thus, in fourth place, the so -called position marks are constituted.

The location and size of the product sign must be clearly determined, as well as the elements of the product that will not be protection by registration .

For example, following the line of the cases exposed, a position mark would be the red mark of “Christian Louboutin” applied to the shoes sole. Thus, the aforementioned Judgment of the Court of Justice of the European Union in matter C-163/16, of June 12, 2018, “Christian Louboutin” versus “Van Haren Schoenen”, provides that “the brand consists of the red color(Pantone N code. 18.1663TP) applied in the sole of a shoe as represented (the contour of the shoe is not part of the brand but its purpose is to reveal the location of the brand) ”.

Fifth, employer brands are established, that is, brands composed only of a set of elements that are repeated periodically . This kind of brands is frequent to record the prints composed of a successive repetition of a representative logo, such as with the “Louis Vuitton” brand, or by an identifying print of the company, as is the case of the well -known cadres printof "Burberry" .

Finally, to close the most relevant brand classes in the fashion sector, we find color brands. They are those brands that are constituted only by a single color, or by a combination of these, without contours . In the request of the registration of this kind of brands, a universally known color code must be attached, the most common being the Pantone, so that it allows to establish exactly the color tone that is desired. Although, with great difficulty there will be protection to signs constituted by a single color, since they do not comply with the distinctive purpose that must be their own. Yes, it will be possible to register it when it comes to a unique color that distinguishes a specific product or service, that is, in the case of a color endowed with distinction for defined products or services. Thus, the perception of the specific sector to which the average consumer of the fashion products or services in question must be taken into account, or, prove that it has a differentiating character due to the use of usewhich has been given to that color prior to the registration .

This has been determined by the Supreme Court in its judgment of December 2, 2013, resource number 4301/2012 by providing that a color “alone normally lacks the inherent property of distinguishing products from a certain company. It should not be excluded, however, that in exceptional circumstances a color has only acquired, as a consequence of its continued use prior to registration, a distinctive character, mainly when the number of products or services for which the brand is requested is veryLimited and the reference market is very specific, ”also establishing that" it does not exist (…) express legal impediment so that "color by itself" (that is, apart from its association in a form) can constitute a brand ", remaining "in any case the demand for distinctiveness of the sign whose record is intended".