CHAPTER IV

GLOBAL PERSPECTIVE ON ANTI-COUNTERFEITING IN FASHION

INDUSTRY: A COMPARATIVE LEGAL ANALYSIS OF US, UK, AND EU.

4.4 European Union: Legal Framework and Enforcement

Europe has long been a center of innovation in textiles and fashion, producing influential figures
such as Coco Chanel, Pierre Cardin, and Christian Dior1. This region not only shapes global
fashion but also prioritizes safeguarding the creative rights of its designers. The European
Union, comprising 28 member states, plays a crucial role in ensuring legal protection for fashion
creations across the continent.

Fashion products in the EU benefit from overlapping intellectual property safeguards, with both
copyright and design laws providing legal recourse against unauthorized reproduction.
Copyright protects original designs that reflect the designer’s creative expression, while design
protection covers the unique appearance and aesthetic aspects of garments and accessories. This
dual-layered system acknowledges the artistic and functional elements of fashion, ensuring that
both couture and mass-market designs receive legal recognition. Historically, three of the
fashion capitals are located in the EU, namely: Paris, Milan and London. Europe remains the
center of haute couture and the protection of fashion designs, is a core feature of its cultural
identity and legal regimes. Therefore, it will be relevant to study the protection system followed
in the EU. There are two parallel systems of protection of fashion design that coexist: Copyright
and Community Design Rights.

4.4.1 EU Regulations:

A. Framework for Copyright Protection in the EU Fashion Industry

The European Union provides a comprehensive framework for copyright protection in the
fashion industry. This protection extends to original creations, including artistic works such as
clothing designs, textile patterns, and fashion accessories. While copyright laws in the EU are

1
JAIN, S.: Cumulative protection in EU fashion design. 15 July 2021. Available at:
([Link] protection-in-eu-fashion-design/)
harmonized largely through directives and regulations, their interpretation is influenced by the
Court of Justice of the European Union (CJEU) and national courts.

I. Directive 2001/29/EC (Information Society Directive – InfoSoc Directive)

The Directive 2001/29/EC2, also known as the InfoSoc Directive, was adopted to harmonize
copyright laws across the EU’s member states and ensure compliance with international
agreements like the Berne Convention and the TRIPS Agreement. This directive plays a crucial
role in protecting intellectual property in the fashion industry by recognizing creative works,
including designs, as protected under copyright law. The InfoSoc Directive provides a legal
framework for fashion brands to combat counterfeiters and unauthorized reproductions. If a
garment or design meets the originality requirement—meaning it reflects the designer’s
intellectual creation—it is protected. This directive also allows luxury fashion houses to
challenge third parties who replicate their iconic pieces without consent. Key Provisions of the
InfoSoc Directive are as under:

Exclusive Rights: The directive grants authors and creators the exclusive right to control
the reproduction, distribution, and communication of their works to the public. For fashion
designers, this means that their original designs (if meeting the creativity threshold) cannot
be copied, sold, or shared without authorization.

Reproduction Right (Article 2): Designers have the legal right to prevent the unauthorized
copying of their creations. This extends to both physical designs (e.g., garments,
accessories) and digital representations (e.g., 3D models, sketches).

Communication to the Public (Article 3): This provision allows designers to control how
their works are shared and displayed to the public, including online presentations of
collections and digital lookbooks.

Distribution Right (Article 4): Designers hold the exclusive right to authorize or prohibit
the sale or other distribution of their protected designs. This applies to both physical and
digital markets.

2
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of
certain aspects of copyright and related rights in the information society. Official Journal L 167.
The InfoSoc Directive focused on protecting authors' works but did not explicitly define the
concept of a "work." As a result, the task of interpreting this term fell to the Court of Justice of
the European Union (CJEU). The CJEU first clarified the meaning of "work" in the Infopaq3
decision, stating that a work must be original, meaning it reflects the author’s own intellectual
creation.

II. Directive (EU) 2019/790 (Digital Single Market Directive)

The Directive on Copyright in the Digital Single Market (2019/790), also known as the Digital
Single Market (DSM) modernizes copyright law across EU member states. Directive, was
introduced to modernize EU copyright law and address the challenges posed by digital content
sharing. This directive has significant implications for the fashion industry, particularly in how
fashion designs are shared, sold, and protected online This directive responds to the growth of
digital platforms and addresses new forms of copyright infringement in the online world. The.
Key Provisions Relevant to Fashion include

Platform Liability (Article 17): One of the most significant changes introduced by this
directive is that online platforms are now liable for copyright-infringing content uploaded
by users. E-commerce platforms, digital marketplaces, and social media sites must monitor
and remove infringing materials, including unauthorized fashion designs and product
images.

Protection of Digital Fashion Content: With the rise of virtual fashion (e.g., digital
garments for avatars) and online showcases, this directive extends protection to these
digital assets. Unauthorized copying of virtual designs now falls under the purview of
copyright infringement.

Fair Remuneration for Creators (Articles 18-23): Fashion designers are entitled to fair
compensation when their designs are used commercially, whether in digital or physical
form. This provision empowers emerging designers to claim equitable royalties when their
work is exploited by larger corporations.

Automated Filtering Obligations: Platforms must implement upload filters to prevent the
publication of copyrighted content without authorization. This provision strengthens the

3
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECLI:EU:C:2009:465.
 legal position of fashion brands, as digital replicas of their designs can be automatically
detected and removed.

III. Key Principles of Copyright Protection in the EU Fashion Industry

Copyright protection in the EU for fashion designs is based on three core principles.

The originality standard requires that a work must be an original intellectual creation reflecting
the designer’s free choices. This standard, defined by the CJEU, ensures consistent protection
across the EU. Fashion designs are protected if they meet the originality requirement, covering
both physical and digital works:

Garment Designs and Couture Works: Unique, creatively crafted garments, including
couture pieces with distinctive shapes or construction, are protected under copyright law.

Textile Prints and Patterns: Original textile designs, whether physical or digital, such as
prints and embroidered patterns, qualify for protection.

Accessories and Footwear: Distinctive accessories like handbags and shoes receive
protection, including both their physical form and artistic features (e.g., the Louboutin red
sole case).

Digital Fashion and Virtual Designs: Digital fashion, including virtual garments and 3D
renderings, is protected under the Digital Single Market Directive, safeguarding designs in
virtual environments.

Automatic protection means copyright applies immediately upon creation without registration,
which is essential in the fast-moving fashion industry.

Duration of protection lasts for the author’s lifetime plus 70 years, or 70 years from publication
for corporate-created designs, ensuring long-term protection for both individual and
commercial works.

IV. Landmark Case Law Shaping Copyright Protection in EU Fashion Industry

CJEU rulings play a pivotal role in interpreting and harmonizing EU copyright protection for
fashion designs. Key decisions have expanded the scope of protection and clarified legal
uncertainties.

i. Cofemel v. G-Star Raw (Case C-683/17, 2019)

The Cofemel v. G-Star Raw case involved a dispute where G-Star Raw accused Cofemel of
copying its jeans designs. The central issue was whether functional fashion designs could be
protected under copyright law. The CJEU ruled that fashion designs are eligible for copyright
protection if they meet the originality requirement—meaning the work must reflect the
designer’s own intellectual creation. The court also rejected the need for designs to possess
aesthetic value to qualify for protection. This ruling expanded the scope of copyright protection
in the EU, allowing functional fashion items to be protected as long as they demonstrate
originality. The decision provided stronger legal grounds for designers to protect their work
against imitation and counterfeiting.

ii. Flos v. Semeraro (Case C-168/09, 2011)

In Flos v. Semeraro, Flos, an Italian company, filed a lawsuit against Semeraro for producing a
replica of its iconic Arco lamp. The key question was whether industrial designs, including
fashion items, could be protected under both copyright and design law. The CJEU ruled that
such designs can benefit from dual protection if they meet the originality threshold. The court
clarified that the functional nature of a design does not exclude it from copyright protection.
This decision strengthened the legal position of designers by confirming that industrial and
fashion designs could be safeguarded through multiple legal frameworks, providing broader
protection against unauthorized reproduction

V. Enforcement of Copyright in the EU Fashion Industry

The EU legal framework provides strong enforcement mechanisms for copyright protection in
the fashion industry. Rights holders can pursue both civil remedies and administrative
enforcement to combat infringement, secure compensation, and prevent counterfeit goods from
entering the market.

i. Civil Remedies
 a. Injunctions: Courts can issue injunctions to stop the production, sale, and distribution of
infringing fashion items. This measure helps prevent further financial and reputational
damage.

b. Damages: Copyright owners can claim monetary compensation for losses caused by
infringement. Courts may award additional damages in cases of deliberate or large-scale
violations.

c. Destruction Orders: Courts can order the destruction of counterfeit goods, ensuring that
infringing products do not re-enter the market. This remedy applies to both physical and
digital designs.

ii. Administrative Enforcement

a. Customs Regulation (EU 608/2013): This regulation allows EU customs to seize

counterfeit goods at borders. Copyright owners can register their designs with customs,
enabling proactive detection and destruction of fakes.

b. Digital Takedown: Under the Digital Single Market Directive (EU 2019/790), rights
holders can request the removal of infringing content from online platforms. This targets
digital counterfeits and unauthorized virtual designs.

B. Legal Framework for Design Protection in the EU Fashion Industry

Fashion design could be protected in two ways in the EU, on the one hand with community or
national design rights protection, and on the other with national copyrights protection. Due to
the principle of cumulation, both can be used in some countries.4

I. EU Design Directive

The EU developed a unified approach to design rights protection, by first enacting the EU
Designs Protection Directive. The EU Design Directive (Directive 98/71/EC) and the
Community Design Regulation (Regulation (EC) No 6/2002) both aim to protect industrial
designs within the European Union but differ in their scope, application, and legal framework.

4
The EU Design Directive harmonizes the national design laws of individual EU Member States,
ensuring that all countries adopt a common standard for design protection. It only covers
registered designs, meaning creators must file separate applications in each Member State
where they seek protection. The protection lasts for up to 25 years, renewable every five years.
However, design protection under the Directive is limited to the specific country where the
design is registered and does not offer automatic protection. Key Features of the EU Design
Directive are:

i. Definition of Design: It defines a design as the appearance of a product or part of it, which
results from features such as lines, contours, colors, shape, texture, and ornamentation.

ii. Novelty and Individual Character: For a design to be protected, it must be:

New (no identical design must have been made available to the public) and must Have
individual character (the design must create a different overall impression from prior designs).

iii. Dual Protection: The Directive allows cumulative protection under both copyright and
design laws if the design meets originality criteria.

After its design right directive, the EU enacted EU Regulation 6/2002 extending protection of
the Community design right to include both registered and unregistered rights.

II. Community Design Rights under Regulation (EC) No 6/2002

The Community Design Regulation (CDR), formally known as Council Regulation (EC) No
6/2002, standardizes design protection across EU Member States. It provides a unified legal
framework, allowing designers to secure protection for their creations throughout the EU with
a single application. This regulation covers both functional and ornamental aspects of a design
while balancing the interests of designers and market competition.

The regulation defines a “design” as the appearance of the whole or a part of a product resulting
from the features, in particular the lines, contours, colours, shape, texture and/or materials, of
the product itself and/or of its decoration, including the movement, transition or any other sort
of animation of those features.5 This broad definition allows a wide range of fashion products—
such as clothing, accessories, and textile patterns—to qualify for design protection.

The CDR offers two distinct types of design rights:

i. Registered Community Design (RCD)

The Registered Community Design (RCD) provides long-term protection for designs that
are officially registered with the EU Intellectual Property Office (EUIPO). It grants the
owner exclusive rights to the design and prevents unauthorized use across all EU Member
States. Protection lasts up to 25 years, subject to renewals every five years from the date
of filing. The owner has the right to make, sell, import, export, and use the design. Covers
intentional and independent creation of similar designs—meaning even if a competitor
unintentionally produces a similar design, it may still infringe on the RCD. For e.g. Iconic
fashion items with enduring popularity, such as Hermès’ “Kelly Bag” and Chanel’s “Boy
Bag,” are often protected under the RCD system to preserve their commercial value.

ii. Unregistered Community Design (UCD)

The Unregistered Community Design (UCD) offers automatic protection without the need
for formal registration. It is particularly useful in fast-moving industries like fashion, where
trends change rapidly, and formal registration may be impractical. Protection lasts three
years from the date the design is first made available to the public in the EU. This period
cannot be extended. UCD only protects against deliberate copying of the design. If a
competitor independently creates a similar design without prior knowledge, it does not
constitute infringement. For e.g Seasonal collections, runway designs, and limited-edition
garments often rely on UCD protection due to their short lifespan.

Advantages of UCD in the Fashion Industry are : No formal registration is required—

protection arises immediately upon public disclosure. They are Ideal for short-lived
designs like seasonal collections.

The dual protection under the CDR allows designers to choose between formal, long-term
protection (RCD) and automatic, short-term protection (UCD), depending on the commercial

5
Council Regulation (EC) No 6/2002 on Community designs Article 3(1)
lifespan of their creations. This flexible framework is especially beneficial to the fashion
industry, where both iconic and transient designs need safeguarding.

Key Differences between EU Design Directive and Community Designs Regulation

The EU Design Directive applies to national systems, while the Community Design Regulation
provides EU-wide protection. The Directive only covers registered designs, while the
Regulation includes both registered and unregistered designs. The Directive requires separate
filings in each Member State; the Regulation allows one application for the entire EU. Only the
Regulation offers automatic, short-term protection through Unregistered Community Designs.

III. Case Studies

Karen Millen v. Dunnes (C-345/13) was a significant case where Karen Millen, a British fashion
retailer, sued Dunnes Stores, an Irish retailer, for copying her blouse design without permission.
The Court of Justice of the European Union (CJEU) ruled that a design has individual character
if it creates a unique overall impression on an informed user, without requiring the designer to
prove that the design is entirely original. This ruling clarified the legal standard for individual
character under Regulation (EC) No 6/2002, making it easier for designers to protect their
creations and enforce their rights. It also increased the burden on infringers, who must now
prove that their designs create a distinct impression rather than relying on claims of independent
creation. This case strengthened design protection in the EU and became a key precedent for
future disputes in the fashion industry.

Diesel vs. Zara: Design Infringement Across Borders

In 2018, the District Court of Milan ruled in favor of the Italian fashion brand Diesel in a case
against Zara, where Diesel accused Zara of infringing its registered Community design for
women's jeans. The court held that design protection under the Community Design Regulation
applies across EU member states, allowing for legal action against infringing companies
regardless of their country of origin. This ruling reinforced the principle that foreign-based
companies can be held liable for marketing infringing products within the EU, strengthening
the cross-border enforceability of design rights and providing broader protection for fashion
designers operating in the region.

C. Anti-Counterfeiting Measures:
i. EUROPOL and OLAF Operations Against Counterfeit Imports

EUROPOL, the EU’s law enforcement agency, and OLAF (European Anti-Fraud Office)
play a crucial role in combating counterfeit goods across member states. They collaborate
with national authorities to investigate large-scale counterfeit networks, focusing on the
interception of fake products entering the EU. These operations target counterfeit fashion
items, luxury goods, and textiles, disrupting illegal supply chains and protecting consumer
safety and brand integrity.

ii. Role of the EU Intellectual Property Office (EUIPO) and the Observatory on Infringements
of IP Rights

The EUIPO oversees the registration of Community designs and trademarks, playing a
central role in protecting intellectual property across the EU. The Observatory on
Infringements of IP Rights, under the EUIPO, monitors and reports on counterfeiting
trends, assesses the economic impact of IP crime, and provides resources for law
enforcement and policymakers. It also raises public awareness about the risks and
consequences of purchasing counterfeit products.

iii. Customs Regulation (EU 608/2013) and Seizure of Counterfeit Goods

Customs Regulation (EU 608/2013) empowers customs authorities to detain and seize
counterfeit goods at EU borders. It allows IP rights holders to request border protection
and facilitates the rapid identification and removal of fake products. This regulation
strengthens the ability to prevent the entry of counterfeit fashion goods and ensures better
cooperation between customs offices across member states.

iv. Digital Counterfeiting and Measures Under the Digital Services Act (DSA) 2022

The Digital Services Act (DSA) 2022 addresses the rise of counterfeit goods in online
marketplaces. It holds digital platforms accountable for monitoring and removing
counterfeit listings, requiring greater transparency and due diligence. This regulation
enhances consumer protection by obligating online services to verify sellers, report illegal
content, and cooperate with law enforcement to combat digital counterfeit distribution.
4.4.2. National Legislations

Although EU directives harmonize core copyright principles, differences exist in how countries
interpret and enforce these protections. Each member state has transposed these directives into
its national legal systems.

A. France:

i. Legal Framework for Fashion Design Protection

France offers extensive legal protection for fashion products and designs, similar to the United
States. As a global leader in the fashion industry and home to Paris—the world’s fashion
capital—France enforces intellectual property (IP) rights through specialized legal frameworks.
The French Intellectual Property Code (IPC) governs these protections and explicitly covers
creations from seasonal fashion industries. This includes industries engaged in frequent design
renewal, such as dressmaking, leather goods, footwear, haute couture fabrics, and upholstery.

ii. Dual Protection: Copyright and Industrial Design Rights

French law provides dual protection for fashion designs through copyright (droit d’auteur) and
industrial design rights (droit des dessins et modèles), allowing for comprehensive protection.

Copyright Protection (Droit d’Auteur):

Copyright protection in France applies to original works that reflect the designer’s
personality and creative expression. Governed by the IPC, fashion designs—including
sketches, patterns, and finished garments—qualify for protection if they meet the
originality requirement. This protection lasts for the designer’s lifetime plus 70 years after
death. French copyright law also includes moral rights (droit moral), allowing designers to
be recognized as authors and object to any modification that harms their reputation.
Copyright infringement can result in civil and criminal penalties, including damages and
injunctions against counterfeit goods.

Industrial Design Protection (Droit des Dessins et Modèles):

Industrial design protection covers the aesthetic and ornamental aspects of fashion items,
including lines, shapes, colors, textures, and materials. Designers can register their designs
 with the Institut National de la Propriété Industrielle (INPI) for national protection or the
European Union Intellectual Property Office (EUIPO) for EU-wide coverage. Registered
designs receive an initial five-year protection period, renewable for up to 25 years.
Additionally, unregistered Community designs are automatically protected for three years
from the date the design is made public, which is useful for industries like fashion that
produce rapidly changing collections.

iii. Landmark Case: Yves Saint Laurent (YSL) v. Ralph Lauren

A landmark case reinforcing French IP protection involved Yves Saint Laurent (YSL) suing
Ralph Lauren for copying a black tuxedo dress first created by YSL in 1966 and reintroduced
in the 1991-92 haute couture collection. The French court found the Ralph Lauren version
strikingly similar, such that an ordinary consumer could not distinguish between the two. The
ruling favored YSL, awarding $395,000 in damages, and reaffirmed France’s strong protection
of fashion designs under copyright law.

iv. Key Features of French IP Protection in Fashion

Dual Protection: Fashion designs can be protected simultaneously under copyright and design
law if they meet originality requirements.

Haute Couture Safeguards: France’s Fédération de la Haute Couture et de la Mode (FHCM)

promotes and protects the rights of haute couture designers.

Strict Enforcement: French courts adopt a proactive stance in protecting fashion designers—
particularly luxury brands—against counterfeiting.

Customs Surveillance: France participates in the EU’s Anti-Counterfeiting initiatives, with

customs authorities empowered under Customs Regulation (EU 608/2013) to prevent
counterfeit goods from entering the market.
v. France’s Position Within the EU Framework

While EU directives harmonize copyright and design law across member states, France remains
distinctive for its rigorous enforcement and dual protection model. The ability to claim both
copyright and industrial design rights, coupled with strict legal remedies and customs
intervention, makes France one of the most protective jurisdictions for fashion designers. This
comprehensive system ensures that designers' creative works are safeguarded through national
legislation and European frameworks, offering a robust defense against design infringement
and counterfeiting.

B. Italy:

i. Legal Framework for Fashion Industry Protection

Italy, alongside France, holds a prominent position in the global fashion industry due to its rich
history and strong association with luxury brands. Although Italy does not have a formalized
"alta moda" system like France, Italian fashion houses consistently produce and present haute
couture collections through specialized showcases. Italian law offers robust intellectual
property (IP) protection for the fashion sector through the Italian Copyright Act and the Italian
Intellectual Property Code, which safeguard original works with creative and artistic value.

ii. Copyright Protection for Fashion Designs in Italy

The Italian Copyright Act protects works of the mind that demonstrate originality, including
literature, music, figurative arts, architecture, theater, and cinematography. This protection
extends to industrial designs if they possess both creative and artistic value. Originality is a
fundamental requirement for obtaining copyright protection under Italian law.

In 2014, Italian courts recognized copyright protection for a fashion product for the first time.
The Intellectual Property section of the Civil Court of Milan ruled in favor of a designer who
created unique corsets for a well-known showgirl. After wearing the corsets during a
photoshoot, the showgirl published the images on her website without crediting the designer.
The court upheld the designer’s moral right to authorship and ordered compensation for legal
costs. This decision confirmed that high-fashion garments can receive copyright protection,
even without industrial design registration.

iii. The Landmark "Moon Boot" Case (2016)

A pivotal case in Italian fashion copyright law occurred in 2016, when the Intellectual Property
section of the Milan court ruled on the "Moon Boot" dispute. Giancarlo Zanatta, who designed
the iconic après-ski boot in 1970, filed a lawsuit against the Anniel Group, alleging that their
"Anouk" model infringed on his copyright. The court sided with Zanatta, recognizing the Moon
Boot as a protected work based on its originality and artistic value. This ruling set a significant
precedent, confirming that fashion products meeting originality standards could benefit from
copyright protection in Italy.

iv. Design Protection Under the Italian Intellectual Property Code

The Italian Intellectual Property Code regulates the protection of design works, covering both
two-dimensional drawings and three-dimensional models. To qualify for protection, designs
must exhibit aesthetic qualities and be identifiable by characteristics such as colors, lines,
shapes, and materials. Italian law requires designs to meet three key criteria:

Novelty – The design must be new and not previously disclosed.

Lawfulness – The design must comply with public policy and accepted moral standards.

Individual Character – The design must create a distinct impression on an informed user.

Design rights apply to various fashion-related products, including fabric patterns, bag designs,
jewelry, watches, sunglasses, and clothing. Both industrial and artistic designs may receive
protection if these conditions are satisfied.

C. Spain

i. Spain’s Legal Framework for Fashion Industry Protection

Spain holds a distinguished position in the global fashion industry, recognized for its rich cultural
heritage and contributions to contemporary design. The nation’s influence is reflected in the works
of renowned designers such as Cristóbal Balenciaga, Paco Rabanne, Custo Dalmau, Ágatha Ruiz
de la Prada, Adolfo Domínguez, Victorio & Lucchino, and Roberto Verino. These creators,
alongside major fashion companies and internationally acclaimed events, have established Spain
as a key player in the fashion world. This international presence highlights the critical role of
intellectual property (IP) in protecting creative works and preserving the rights of designers in a
competitive industry. Spain’s IP laws provide comprehensive protection for fashion products
through both copyright and industrial design regulations. These legal mechanisms ensure that
original designs are safeguarded, whether they are one-of-a-kind haute couture pieces or mass-
produced commercial items.

ii. Copyright Protection for Fashion Designs in Spain

Copyright protection for fashion designs in Spain is governed by the Ley de Propiedad Intelectual
(Royal Legislative Decree No. 1/1996). This legislation incorporates the principles of European
Union (EU) Directives and aligns with international agreements such as the Berne Convention and
the TRIPS Agreement. Under this legal framework, original works of authorship that reflect
intellectual creativity are eligible for copyright protecton. In the context of the fashion industry,
this includes sketches, textile patterns, unique garments, and other artistic designs.

For a fashion design to qualify for copyright protection, it must meet the fundamental criterion of
originality. This means that the design must represent the intellectual effort and creative vision of
its author. Spanish law does not exclude copyright protection for mass-produced items, provided
they meet the originality requirement. However, purely functional or utilitarian designs—such as
basic, standardized garments—fall outside the scope of copyright protection.

One of the defining characteristics of Spanish copyright law is its automatic protection mechanism.
Once an original work is created, it receives legal protection without the need for formal
registration. This protection extends for the lifetime of the designer plus 70 years after their death.
Copyright grants both economic rights—such as the ability to reproduce, distribute, and publicly
display the work—and moral rights, which allow designers to assert authorship and prevent any
unauthorized modification of their creations. These moral rights are inalienable and perpetual,
meaning they cannot be transferred or waived, even after the creator’s death.

iii. Judicial Recognition of Fashion Copyright in Spain

Spanish courts have played a significant role in clarifying and expanding the scope of copyright
protection for fashion designs. A landmark decision by the Supreme Court (Civil Chamber) on 26
October 1992 established that mass-produced items can qualify for copyright protection if they
demonstrate originality. This ruling originated from a case involving jewelry, where the court
recognized that industrially produced goods with creative elements are eligible for protection
under copyright law.

This legal principle was further reinforced by subsequent rulings. In Judgment 21/99 of 11 January
1999, the Court of Appeal of Valencia recognized that a quilted purse produced by a well-known
fashion house could be considered a copyrighted work. The Supreme Court, in its 7 October 2005
decision, upheld this interpretation, confirming that the mode of production—whether handcrafted
or industrial—does not exclude a work from receiving copyright protection if it reflects creative
originality.

iv. Enforcement of Copyright in the Fashion Industry

Enforcing copyright in the Spanish fashion industry primarily occurs through civil litigation.
Designers and copyright holders can seek legal remedies under Article 138 of the Intellectual
Property Law, which provides mechanisms for addressing copyright infringement. Available
remedies include injunctions to halt infringing activities, monetary compensation for financial
losses and moral damages, and the seizure and destruction of counterfeit products.

While copyright law provides substantial civil remedies, it does not impose criminal penalties for
fashion-related copyright infringement unless the violation involves commercial-scale piracy
under the Spanish Penal Code. This distinction makes copyright protection particularly effective
for safeguarding artistic and unique designs rather than industrial or mass-market fashion.

v. Design Protection in the Spanish Fashion Industry

In addition to copyright, Spain offers design protection through Law 20/2003 on Legal Protection
of Industrial Designs, which aligns with the EU Design Regulation (6/2002). This legal framework
protects the external appearance of a product, including its shape, lines, colors, textures, and
ornamental features. This form of protection is particularly relevant for fashion designs that
emphasize visual aesthetics. For a fashion design to qualify for legal protection, it must satisfy two
core requirements:

1. Novelty – The design must not have been publicly disclosed before the filing date in any
jurisdiction.

2. Individual Character – The design must produce a unique overall impression on an informed
user when compared to existing designs.

Fashion designers and brands can secure design protection through registration with either the
Spanish Patent and Trademark Office (OEPM) for national coverage or the European Union
Intellectual Property Office (EUIPO) for EU-wide protection. Registered designs grant exclusive
rights to the holder, preventing third parties from reproducing, selling, or importing similar designs
without authorization. The initial protection lasts 5 years and may be renewed in 5-year increments
for a maximum of 25 years.

vi. Unregistered Community Designs

Spain also recognizes Unregistered Community Designs (UCDs) under EU law. This form of
protection arises automatically when a design is publicly disclosed within the European Union and
lasts for 3 years. UCDs are particularly valuable for the fast fashion sector, where designs rapidly
change, and formal registration may be impractical.

However, UCDs offer limited protection as they only guard against intentional copying, while
registered designs protect against both deliberate and unintentional infringement. This distinction
makes registered designs the preferred option for long-term protection of commercially significant
fashion creations.

vii. Enforcement of Design Rights in Spain

Design rights in Spain are enforceable through both civil and criminal channels. Under Article 55
of Law 20/2003, design holders can seek injunctions, financial compensation, and the seizure of
infringing products. Additionally, intentional design infringement is punishable under Article 273
of the Spanish Penal Code, which prescribes imprisonment of up to 4 years and substantial fines
for commercial-scale violations.

Spain also offers border protection measures under EU Regulation No. 608/2013, allowing design
holders to request customs authorities to seize counterfeit goods at the country’s borders. This
mechanism strengthens protection against the international trafficking of counterfeit fashion
products.