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This guideline contains straightforward key issues such as:
• fashion creations are considered works of ‘applied art’. They need to be original according to the law i.e. the creation expresses the personality of the designer (Art 2, s 20 of the Act).
It states that a work of applied art is an artistic creation with utilitarian functions or incorporated in a useful article, and it could made by hand or produced industrially.
Elaborating on this, the guide notes that ‘not all fashion creations shall be protected by Copyright as works of applied art, but only those which are or embody original artistic creation’. It also estates that fashion designs ‘usually has a utilitarian function (such as dressing the body of a person).’ It gives examples of garments in general but notes also accessories such as gloves, scarves, hats, jewellery, among others.
• fashion is also likely to be protected by other intellectual property rights such as trade marks. A registered trade mark protects the distinctive sign that the fashion design may have e.g. logo. However, in this case, what is protected is the logo, not the garment/design as such. The guide given example is the monogram YSL displayed in clothing and accessories – protected by trade mark as a registered trade mark for Yves Saint Laurent (Indecopi, N° 114706 in Class 25).
It also may be protected by industrial design and gives the example of the design of a particular pattern fabric featuring a monogram. This type of work is created by 2D and 3D forms that are incorporated into the garment and produced in scale such as GUCCI. Again what is protected is not the fashion design but the pattern featuring the monogram ( Design D359,166 USPTO).
INDECOPI’s Directorate of Copyright reminds interested party who wish to protect their work, to visit their website at http://www.indecopi.gob.pe/ddavirtual/informacion, where they can find information about the registration of their work.
INDECOPI notes that the institute ‘reflects its continuing interest in promoting, among the creative industries, the tools of protection of intellectual property as an engine for economic development. At the same time, it reaffirms its commitment to strengthen the culture of respect for copyright, source of job creators and means of expression of our cultural identity’. Indeed according to Christiane Schuman Campbell, 'the fashion industry in the United States generates more than $300 billion in revenue each year' and thus gives a substantial contribution to the U.S. economy.