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Rethinking The Copyright and Design Patent Protection Of FASHION DESIGNS In China

Cheng Mao ： 3030010255, PhD Student, HKUPrimary Supervisor ： Sun Haochen; Co-Supervisor: Alice Lee

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What Is “Zeline”?Left: Celine; Right: Zara

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Joey Yung Wearing “Shanzhai” Viktor & Rolf “Designed” by Local Designer For Musical Award

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TABLE OF CONTENT

• INTRODUCTION• LITERATURE REVIEW• RESEARCH GAPS• RESEARCH QUESTIONS• ARGUMENTS• METHODLOGIES• EXPECTED RESULTS• CONTRIBUTIONS• OUTLINE

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CHINA: HEAVEN FOR FAKE GOODS -- “SHANZHAI” SHOES IN CHINA FASHION WEEK

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CHINA: RISING AWARENESS OF COPYRIGHT OF FASHION AND PROMOTION OF ORIGINAL DESIGNS

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INTRODUCTION: COPYRIGHT PROTECTION OF FASHION DESIGNS IN CHINA

Copyrightable Works

Literary works Artistic Works

Works of Fine Arts

Extension to Works of

Applied Art

Only “Artistic”

Dress

(Proposed) Works of

Applied Art

Only “Artistic Dress”?

Often step into subjective judgment on artistic merit

How to draw the line?

Denial of copyright for commercial, industrial dress

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INTRODUCTION: PATENT PROTECTION OF FASHION DESIGNS IN CHINA

Invention• Protect Functionality• New, Inventive,

Utilitarian

Utility Model

• Protect Functionality• New, Inventive and

Utilitarian

Design Patent

•Does not protect functionality•New and Rich in an aesthetic appeal•Costly, lengthy and with high threshold

Patent

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INTRODUCTION: TRADEMARK AND UNFAIR COMPETITION PROTECTION OF FASHION DESIGNS IN CHINA

Trademark

3D Trademark• Secondary Meaning• Non-Functional—

Technically/ Commercially

Unfair Competition

Unique name, package, or decoration• Secondary Meaning• Not product design

per se?• Non-Functional—

Technically/ Commercially

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LITERATURE REVIEW: LAW AND RESEARCH IN THE US

• US: Copyright (exclusion of useful articles) ； Design Patent; Proposed Sui Generis Copyright Law for fashion designs

• Some (e.g. Rustiala & Springman) observe the characteristics in the fashion industry (trends, cycles, etc.) and prefer to explore trademark & extra-legal means to encourage creations and competition

• Others (e.g.Hemphill and Suk ) argue the balance can be achieved by tailoring the scope of protection, standard of infringements, limitations and exceptions, term of protection, etc. .

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LITERATURE REVIEW: LAW AND RESEARCH IN EU• EU: Community Design law and Community Unregistered

Design Law; Copyright

• Academics (e.g. Suthersanen) highlight the marketability of design and justify cumulative protection from the integration of art, industry and commerce

• Critics: Justice v. Efficiency

• EU & US: fail to reveal more profound historical, cultural reasons ( e.g. the interplay between the development of the fashion industry and the origin of design patent/ design law) , and lack sufficient empirical evidence

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LITERATURE REVIEW: ART, FUNCTION AND COPYRIGHT LAW

Duchamp’s “Fountain” Star War Helmet

Bauhaus School Belt Buckle

Non- propositional Art v. Artistic Purpose (UK)

Bauhaus v. Separability (US)

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LITERATURE REVIEW: ART/ FUNCTION TESTS IN COPYRIGHT LAW

• The existing tests have not followed the changing ideas of art and design.

• Some scholars discussed alternative approaches (institutional, historical approaches) to the standard of artistic works in copyright law.

• More investigations are needed in the meaning of fashion designs, its relationship with art/ design (especially in post-modern context) and the legal definition of artistic works.

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LITERATURE REVIEW: CURRENT RESEARCH ON COPYRIGHT AND DESIGN PROTECTION OF FASHION DESIGNS IN CHINA

• Practical but lacks comprehensive legal analysis– merely case collection and surveys conducted by fashion school members

• Isolated —copyright and design patent researchers in China rarely look into the special features in the fashion industry.

• Technical – many design patent specialists in China only deal with technical problems.

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RESEARCH GAPS

EU US China

Focused Jurisdiction

YES YES NO

Re-evaluation of the commercial aspects of designs

YES YES NO

Integrated Research of Art/ Fashion/ Law/

BARELY NOT SUFFICIENT NO

Monographs NO NO NO

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RESEARCH QUESTIONS

Whether current copyright and design patent are sufficient for fashion designs in China

If no, how they should be amended

Do we need sui generis design law?

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ARGUMENTS

• Fashion designs as design-intensive and consumer conscious industry reflect the dynamics of art, technology, and commerce. The traditional dichotomic division of art and industry is no longer suitable for the development in designs , especially for fashion designs.

• In China, in the long-term, design should be separated from the patent regime, and unregistered design protection should be available. In the short- term, copyright law should provide realistic protection for fashion designs.

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ARGUMENTS– LAYERS OF PROTECTION

Trademark/ Unfair Competition

Copyright

Design

Unregistered Design

• Non-Functionality• Covering 3D design &

Package, get-up

• Works of applied art• 25 years

• Based on current design patent

• Renewable term

• Incorporate some copyright features

• Short term

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METHODOLOGIES

• Comparative Research: thoroughly compare legal texts, cases and papers from China, EU (UK, France Germany) and US, etc. to provide specific recommendations in China.

• Integrated Research: review of historical, cultural, social background, and justify copyright and design protection for fashion designs.

• Empirical Case Studies: collect database search results, reports, policy papers and publications by courts and IP offices in selected cities to evaluate the importance, impacts and efficiency of protection of fashion designs in China.

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MATERIALS AND RESOURCES

• Comparative Legal Research• Statutory law and Cases in US, EU, and China;• Academics’ works (e.g. Reichman; Dinwoodie; Suthersanen; Hu Chonghan)• Legislative proposal hearings (EC Green Paper Hearings ; US IDPA

Hearings, etc.); WIPO documents ;AIPPI (Questionnaires and National Reports in2012) ; ALAI (Questionnaires and National Reports in 2001)

• • Integrated Research:• Art and Design History; Fashion Theories

• Empirical Research:• Policy papers; Reports from consult groups (BCG; Li & Fung. etc); Database

search…• WIPO & NCAC reports, Publications by courts and copyright/ design patent

offices …

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EXPECTED RESULTS

• Recommend appropriate copyright protection for artistic fashion designs in China:

• Propose the directions of sui generis design protection in China

• Review related protection of fashion designs in trademark law and unfair competition law in China.

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CONTRIBUTIONS

• Fill the gap in the research on copyright and design protection of fashion designs in China by:

• Providing the first monograph on this topic with substantive, comprehensive and systematical study.

• Having a deep insight into the dynamics of this issue with the historical, social, cultural context and empirical data analysis

• Proposing cohesive, realistic multi-layers of protection for fashion designs in China. Also referential for other countries.

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OUTLINE

• Chapter 1: Introduction

• Chapter 2: Justifying IP Protection for Fashion Designs

• Chapter 3: Copyright & Design Protection of Fashion Designs in US & EU

• Chapter 4: Copyright Protection of Fashion Designs in China

• Chapter 5: Design Patent, Trademark and Unfair Competition Protection of Fashion Designs in China

• Chapter 6: Recommendations for Copyright and Design Protection of Fashion Designs in China

• Chapter 7: Conclusions

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THANK YOU !