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Guest post; Executive MBA (Fashion) Course Director Jonathan Gander talks Intellectual Property

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Written by
nrichmondswift
Published date
18 January 2016

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Jonathan Gander is the Course Director of the Executive MBA (Fashion) at London College of Fashion. Last week the Executive MBA hosted a panel on intellectual property (IP) at the offices of law firm Hogan Lovells. Jonathan shared his opinions on the discussion.

“I had previously approached the subject of copyright/design protection and enforcement from a cultural economics perspective. This is the one that suggests that the optimal degree of protection rests somewhere between ensuring there is sufficient reward for the creators and safeguarding the competitiveness of the industry – after all monopoly can be the result of too much protection. What I learnt from listening to the panel’s discussion is that yes, it is a matter of economics but it is also a question of management – that intellectual property owners such as fashion designers have a choice as to how they respond to breaches of their copyright or design rights.

The lessons were that everybody gets angry when they see their work plagiarised – not just its creators but also the custodians of IP such as a brand managers. The panel’s wise advice is to wait until the anger passes before deciding what to do. Once it has passed then yes even if the press is raising awareness of the breach of copyright, litigating against the firm or individual can backfire, as it will only feed the press and increase the buying public’s awareness of the availability of cheaper versions of the product! Another reason to think twice about using the prosecution route is that it might appear uncool. That some designers say ‘so what?’ – the copy is poor quality my work is excellent…I am confident in my work. The reputation of the designer can, if properly handled during the breach, emerge increased rather than damaged. Enhanced social capital as academics would say. Of course this choice doesn’t mean don’t act – and we heard the familiar story of the power of the lawyers letter – everyone should have a law firm to write people scary letters when needed!

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So I got a different sense of what is optimal in regards to protection and enforcement. That from an individual IP owners perspective it is about ensuring there is monetary reward for their work, but it is in many cases better to get the product pulled, receive an apology and agree a settlement rather than go to court. There was the suggestion from members of the panel that this is part of the price of being in the fashion industry- the industry is rife with copying, perhaps necessarily so to ensure the generation of innovations (often built on combining ideas) and the formation of trends. Product lines move too fast to wait for the court’s judgement – better to get a lawyer to send a letter, get the line pulled and receive some payment, than try to protect something that might lose its value next season and recoup all your potential lost sales.

A question from the floor on Zara’s approach to the imitation of others’ catwalk designs prompted musing from the panel on whether the company’s fast fashion approach was very well suited, perhaps more suited than other fashion business models – to this approach. Though they didn’t say – as they have no knowledge of the company’s approach to this matter – the company can imitate, sell fast and be ready to withdraw and settle if challenged effectively. Zara’s scale and speed of line replacements ensures that they would still come out better off.

Y11A8875B&WSuch a rich discussion means I can’t note down all my thoughts from listening to the panel. There were interesting comments on 3D printing, the challenge of China, the importance of protecting a society’s cultural heritage as well as an individual’s designs. The panel debated the value of trademarks (easy and reliable) and patents (expensive and very difficult to write) and of the differences in execution between inspiration versus appropriation. Clare recounted the rather sad story of the designer of the Star Wars Storm Trooper’s helmet (no royalties) and Sahira warned us of the dangers of buying knock off in Italy (it’s a crime!).

So, thanks to the panel, I have shifted my position a little. The issue of copyright protection is not only a question of economics and the preservation of individual incentive, it should also be seen as a managerial skill, a question of tactics and even in the case of some firms, a matter of strategy.”

Jonathan