The fashion industry in Nigeria has grown largely over the years, earning itself a spot as one of the major components of the Nigerian economy. A major problem associated with the Nigerian fashion industry is the lack of a solid legal framework. There are no central bodies regulating the fashion industries neither are there laws or policies governing and protecting those involved in the industry.
Like every other sector, law is a necessity in the fashion industry. Law in fashion deals with aspects such as intellectual property protection of fashion designs and creations, licensing, franchising, manufacturing, marketing, consumer protection, employment and labor laws.
A major issue which arises in the Nigerian fashion industry is related to the infringement of intellectual property. This article seeks to examine the use and effectiveness of Intellectual property law in the protection of fashion designs and creations. There are various types of intellectual property protection that fall within the industry and they include: copyright, trademark and industrial designs. These would be considered in relation to their relevance to fashion.
Section 1 of the Nigerian Copyright Act provides for the types of works that are eligible for copyright and these are “literary works, musical works, artistic works, cinematographic works, sound recording and broadcasts”.
However, Section 1(3) of Nigeria’s Copyright Act states:
“An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.”
This means that a designer’s sketches are only protected by copyright as long as they fulfil the requirement of originality and there is no intention for it to be reproduced. As a result, protection under the Nigerian Copyright Act is not available where a designer intends to mass produce his or her garments. This is a disadvantage to Nigerian designers because commercially marketed designs are unprotected under the Copyright Act.
- INDUSTRIAL DESIGN
Fashion creatives may also seek protection by registering a design under the Patents and Designs Act. Section 12 of the Act provides that,
“Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result”
An industrial design is an intellectual property right governed by the Nigerian Patents and Designs Act. The idea behind registering a design is to prevent others from reproducing the external design of the product. The owner of a registered design can prevent others from reproducing, importing, illicitly profiting, selling or utilising it for commercial purposes.
Industrial design protects the aesthetic value and is very relevant to the fashion and textile design industry. A registered design is protected for a period of 5 years from the date of the application for registration. Protection may be renewed for two further consecutive periods of 5 years.
REQUIREMENTS FOR THE CREATION OF AN INDUSTRIAL DESIGN
- The design must be new: A design is deemed new if no identical design has been made available to the public before the date of filing, or the application for registration.
- The design must be original: Designs are considered original, if they have been independently created by the designer and is not a copy or an imitation of existing designs.
- The design must have individual character: The overall impression produced by a design on an informed user differs from the overall impression produced on such a user by any earlier design which has been made available to the public.
- The design must not be dictated exclusively by the technical function of the product. If this is the case, the design registration is not the appropriate form of intellectual property.
- The design must not include protected official symbols or emblems such as the national flag, the coat of arms etc.
- The design must not be one which is considered to be contrary to public order or morality.
In order to register a design in Nigeria, the applicant must consider whether or not the design is new and the applicant must not publicise the design before seeking to register the design. The requirements that the design needs to be novel and must not have been released can be a disadvantage to the designer who will be unable to ascertain the kind of reception the design will be given by the public before going through the effort of registering the design. In addition, the process of registering a design can be long and tedious, which may defeat the purpose of its creation.
Finally, the cost of registering a design under the Patent and design Act may put undue strain on the fashion designers and registration may be quite unaffordable. While the industrial design offers protection to fashion designs, the stringent requirements may make it impracticable and unattainable.
A trademark is a recognizable name or design, which is legally registered and used to identify and distinguish a product or entity from others.
In order to register a trademark, a name or symbol must be able to identify and distinguish a product from other goods. Clothing lines and fashion designers can protect their brands, names, slogans, and logos.
Once registered, it enables the trademark owner to take legal action against anyone who uses, sell or license the registered mark without permission. However, only the mark is as a matter of course protected and not the entire garment or accessory.
Fashion creatives and designers alike can protect their fashion designs through the machinery of intellectual property law. The option of copyright would be open to a design in its original form, without intent of being reproduced. Copyright can be an option in the case where the design is created and left in its original form.
Designers who produce their designs in bulk should consider protecting their creation by virtue of an industrial design while the trademark option would be suitable for the brand identity of a fashion line. These are the current intellectual property protections available to the Nigerian fashion industry.
However, on the effectiveness of the intellectual property laws in the fashion industry, there is an urgent need for reform of Nigerian intellectual property laws in relation its applicability to the fashion industry. Intellectual property law reform in Nigeria would be beneficial in protecting designers and the industry at large.