Designing justice : a critical analysis of intellectual property rights within the fashion industry.
Designers are those individuals within our society with a desire and drive to create. In general designers can be found in all facets of industry and good designers (and ultimately good designs) are the very backbone upon a successful business is built. Designers are required to marry practical knowledge with artistic ability and we are reliant on their skills and to turn abstract ideas into formal designs for everything from the groceries we purchase, the cars we drive and of course, the clothes we wear. Whilst there is no definitive delineation of what a fashion design is, generally fashion designs relate to the creation of designs that focus on clothing, apparel and accessories. The style and functionality of the end products rest firmly within particular time frames, economic and socio-cultural environments within which particular designers find themselves. Accordingly the fashion design industry is never one that stagnates but rather is one that is constantly evolving. In South Africa, the fashion industry is blossoming. As an emerging economy, it is important to create opportunities and not barriers for entry into particular sectors for emerging entrepreneurs. The entire fabric of the fashion industry has certainly changed over time and these changes have brought an increased focus on issues of copying and counterfeiting. It is the contention of some in the industry that there is a need for stricter protection of the actual design in and of itself. Using intellectual property rights as a means of protecting fashion designs is very fitting as every new design begins with an idea, which then evolves, though a process of creative engagement and application of skill and labour to become the final original end product. Designers seeking to protect their designs would need to consider the provisions of the Copyright Act, the Designs Act and the Trade Marks Act. These Acts may in some instances provide a means for protect the actual design incidentally, i.e. by protecting the designer‟s rights in relation to reputation and goodwill associated with the goods whilst in others may afford protection to the design itself. The focus of this research will be a discussion of the legal mechanisms available to fashion designers in South Africa for the protection of their designs using their intellectual property rights and an assessment of whether the fashion industry is in need a stronger intellectual property regime than the current one.