Brooklyn Law Review


Despite being a highly creative industry, the fashion industry lacks effective intellectual property (IP) protection in the United States. This article posits that, in the midst of the digital era, blockchain technology, particularly smart contracts, can remedy the failure of IP laws to protect fashion designs and create efficiencies that may dramatically improve the industry. Therefore, if the fashion industry were to adopt a blockchain-based platform, enabled by smart contracts, it could address many of the current challenges stemming from a lack of sufficient IP protection. This article explores the features of blockchain technology, including NFTS, and the application to the fashion industry. It explains how blockchain technology can be used to create a crypto-legal structure of endogenous quasi-legal protections administered through a decentralized system of self-executing smart contracts, which together can fill the gaps in the existing IP regime. This article further addresses how adopting such technology would improve creators’ control over their designs, the distribution chains, fee collection, and the fight against infringement, while effectively creating a more efficient and transparent industry. These conclusions are based on and justified by the theory of law and economics. Finally, the article urges the first ones to adopt this technology, or those in desire of a competitive advantage, to adopt blockchain technology, and discusses the hurdles that will arise in implementing such a system. It concludes with an assessment of how blockchain-based smart contracts will affect various players in the industry.