This Note examines the necessity of creating clothing design protection legislation in the United States as a catalyst for up-and-coming designers to compete with European Union luxury conglomerates in reaching the new, emerging middle class in mainland China. It first discusses the current international intellectual property regimes pertinent to creative expression and brand ownership in the context of the fashion industry and clothing design. It looks at how international agreements may provide general harmonization strategies for trademark protection but leave up-and-coming brands and designers out of its framework. It also provides a brief overview of the persistence and prevalence of counterfeit luxury goods. It then analyzes the IP regimes and case law concerning luxury fashion from the European Union and the United States. Next, it presents a brief history of modern luxury clothing and then provides a summary of the current malleable state of the fashion industry, the changing branding strategies and retail habits in the luxury goods market, and what holes the U.S. IP regime has left for fast fashion to profit off young designers’ creativity. It then takes an in-depth look at the current fashion industries in the two most influential personal luxury goods markets: France and the United States. At that point, this Note will examine the socioeconomic growth of China over the last three decades, analyzing how the expansion of the Chinese middle class has increased demand for luxury goods both domestically and through shopping tourism. It will then look at how the ritual of gift giving in Chinese culture has affected the intersection between law and the luxury goods market. Finally, this Note will explain the further challenges young fashion designers face beyond the lack of design protection in the United States, arguing that U.S. law needs to provide what protection it can to these designers with so many uncertainties in the luxury goods marketplace.
A Golden Opportunity: Supporting Up-and-Coming U.S. Luxury Designers Through Design Legislation,
42 Brook. J. Int'l L.
Available at: http://brooklynworks.brooklaw.edu/bjil/vol42/iss1/7