The Age in Melbourne reported on 24 January 2007 that Rosemin, a fashion house, is accusing rival chain Gasp of unlawful copying of a dress design.

Judge for yourself. The Age story featured a photo by Rebecca Hallas with the Gasp product on the left and the Rosemin on the right. I've cropped Hallas' photo to highlight the similar dresses. They do look similar to my eye.

To register dress designs, in November 2006 Rosemin Pty Ltd filed nine applications under the Australian Designs Act 2003 (Cth). Tough negotiations if not court action may follow if Rosemin's relevant design achieves registration with IP Australia. However, Rosemin could do more to protect its position.

Good business lawyers resolve commercial needs and legal issues

For me it is understandable and commendable that companies like Rosemin are using design registration to seek IP monopoly legal rights and lawyers to enforce compliance with letters of demand.

Rosemin could do more to enhance its survival. Neither it nor Gasp have much of a Web presence. Rosemin has a website on the way and Gasp's is just an e-commerce hub. What both appear not to properly appreciate is that to protect many types of IP it can be almost as important for the IP to be capable of being Googled, as it is for elements of the IP to be legally registered. In this post I'll briefly demonstrate the ways in which such commercial protection and legal protection go hand in hand.

Our focus on the broader business context affects what we do as lawyers to help clients.  For example it influences the selection of the specific IP we register for clients and the contents of contracts we prepare. It also distinguishes us from traditional approaches in legal practice which narrowly fixate on legal issues.

• Commercial considerations in legal work  Clients rightly value contracts which set appropriate royalties, KPIs (key performance indicators), minimum performance obligations and IP revenue stream provisions. The contract clauses for these provisions all require commercial understanding and input.
• Breadth of knowledge for legal work  To do good legal work for any industry you MUST understand it, including the economic, commercial and technological trends and drivers in it. A lawyer who registers a trade mark, organises a design registration, or drafts a contract without engaging at some level with the relevant commercial and design considerations is working like a headless chicken.
• Yin and Yang of commerce and law  Seriously, there is a Yin and Yang degree of symbiotic connection between commerce and law. WHAT to register or record (led by design, marketing or commercial considerations) should shape and be shaped by the LEGAL MONOPOLY TO SEEK under IP or contract law (ie the legal considerations). This is a fact for astute business and IP solicitors, though not always expressed succinctly. It is one of the reasons why I wrote the post titled What to do before calling a business lawyer.

Industry challenges and solutions for them are bread and butter work in our firm. We do work for clothing brands and a major Australian handbag brand. In this and work for clients in other sectors we've had a long-term aspiration to make IP registrations and contracts resolve commercial needs, not just legal issues.

Don't let the sun go down on your fashion business

Our approach is in line with the fast-paced changes in the fashion sector in general. Change in fashion retailing is progressing at an accelerating pace. The following bullet points record long-term trends in the UK fashion business recorded in a book referenced below.

• "The last 30 years has seen successive waves of attempted retail brand-building in the [UK] fashion sector. However, apart from the corporate mono-brands like Burberrry, Next, GAP and Zara, there is little evidence that today's crop of range brands, such as per una, Linea, Tu and Universal, have much more meaning or staying power than their 1980s' equivalents. ...
• [T]he last 25 years have seen a number of significant trends in [UK] fashion retailing. Overall, the number of retail outlets continues to decline as independents and unprofitable branches of chain stores close.
• In UK retailing overall, around 25,000 shops close each year, but some 20,000 new ones open. This "churn" continues to produce a healthy influx of new home-grown fashion retail entrepreneurs, as well as an increasing number of foreign businesses. The 2005 Sunday Times "Rich List" shows 20 individuals who have accumulated fortunes of UK£90 million or more from the fashion industry. The list is headed by Philip Green [Aarcadia/Bhs] but includes other notables such as Tom Singh (New Look), Stephen Marks (French Connection), Peter Simon (Monsoon), and Sir Paul Smith and John Robinson (Jigsaw).
• However, overall concentration is increasing [particularly in the UK department store sector], with a higher share of sales in the hands of a smaller number of firms. The market is polarising between price-driven brands and stores and those offering some added value benefits. Many of the 1980s' and 1990s' have struggled to resonate with a new generation and have closed, been sold or at least lost market share and profitability." ...
  
• "Fashion retailing [in the UK] is at a crossroads. Traditional business cultures, strategies and skills are being challenged by new enabling technologies, the empowerment of today's shopper and the proliferation of new and more exciting avenues of consumer expenditure. ... only a very few brands have re-engineered their businesses to achieve a powerful and charismatic resonance with the psychological and lifestyles' desires of 21st century humanity. Zara, Top Shop, H&M, Abercrombie & Fitch, Victoria's Secret, Diesel, FCUK, Selfridges... maybe a few more, but the list is quite short."
• "It is estimated that by 2005 nearly 90% of all clothing and fashion accessories sold in the UK will be sourced from abroad."

That last bullet point illustrates that we are at a turning point. Britain industrialised on the back of its textile industry, importing cotton and wool and manufacturing them into textiles and clothing for export. This took it on a road to empire. Now the sun is setting on the British textile manufacturing and export industry. 

Reference: The Fashion Handbook  by Tim Jackson and David Shaw (Routledge, London, 2006). The above quotes are from pages 116 and 126. Both authors have industry experience and lecture at The London College of Fashion.