Miyuki Ebisawa, an attorney at Mimura Komatsu Law Office, presents a special feature on "Fashion Law," a legal field dealing with issues related to the fashion industry and sector. In March this year, the first-ever "Fashion Law Guidebook" was published in Japan.
Upon drafting the Fashion Law Guidebook, the Ministry of Economy, Trade and Industry initiated the 'Study Group on Fashion Futures ～Fashion Law WG～'. Ebisawa served as the vice chair of this group.
In this feature, we bring you a dialogue between Ebisawa and Mayuko Yamamoto, a Gunma University lecturer and attorney who participated in the study group, to discuss the role and importance of Fashion Law, and the challenges it faces – particularly focusing on the hot topic of imitation in fashion design.
Engaged deeply in 'Fashion Law,' dealing with legal issues related to fashion, running the legal consultation service for fashion professionals 'fashionlaw.tokyo', and founder of the specialized media mag by fashionlaw.tokyo'. Guest lecturer at Bunka Fashion College, researcher at Fashion Law Institute Japan, member of the Ministry of Economy, Trade and Industry's 'Study Group for Future Fashion' and vice chair of the 'Fashion Law WG'. Since 2022, an external director at Takashimaya Co., Ltd. Numerous publications, interviews, and lectures on Fashion Law.
PROFILE
Mayuko Yamamoto
Gunma University, Faculty of Informatics, Lecturer Uchida ・ Samejima Law Office, Counsel Attorney (Part-time Lecturer at Bunka Graduate University of Fashion)
Graduated from Chuo University's Faculty of Policy Studies in March 2009. Completed a Master's program in Law at Hokkaido University in March 2012. Registered as an attorney in December 2013. Joined Uchida ・ Samejima Law Office in January 2014 (current position). Began serving as a part-time lecturer at Bunka Graduate University of Fashion in April 2018 (current position). After withdrawing from the Master's and Doctoral programs at Hokkaido University Graduate School of Law, she joined the Doctoral program in Legal and Political Studies at the University of Tokyo Graduate School of Law and Politics in April 2019 (current position). Since April 2022, she has been in her current position.
The Case of Imitation in Fashion Design Under 'Unfair Competition Prevention Act, Article 2, Paragraph 1, Item 3'
EbisawaThis March, the first ever "Fashion Law Guidebook" was launched, highlighting the growing interest in Fashion Law.
With this platform, I aim to discuss the relationship between fashion and law, and ultimately, what the law should aim to be.
Fashion Law covers a broad range of topics, but in this conversation, we are focusing on a topic that is close to the hearts of many—the imitation in fashion design, commonly referred to as 'imitation'.
EbisawaNow, hearing about 'imitation' in fashion design might make many think, "Isn't it a matter of copyright law?"
In fact, for example in France, fashion design is considered a work of authorship under copyright law, and creative fashion designs are protected by copyright law.
On the other hand, in Japan, the design of utilitarian articles, including fashion design, is protected under copyright law only when it can be "separated from practical functions and possesses aesthetic characteristics that are objects of aesthetic appreciation, which makes the bar for protection quite high."
One reason for this is the allocation between copyright law and the Design Law. Since the Design Law covers product design, the idea is that the protection of utilitarian designs should be left to the Design Law.
You might think, why not just protect fashion design under the Design Law? However, fashion design and the Design Law are not that compatible.
This is because it takes six months to nearly a year from the design application to registration, and by the time it's registered, the product might no longer be on sale. Also, the application must be filed before disclosure, and the need to apply for each item makes it costly.
With the high barriers of copyright law and design registration not widely utilized, you might wonder under which law fashion design is protected. This is where Article 2, Paragraph 1, Item 3 of the Unfair Competition Prevention Law (hereafter referred to as 'Item 3') comes into play. I often call this clause 'the last fortress'.
Non-famous fashion design cases almost always fall into the domain of Item 3, which is quite a complex clause.
The preamble has gotten very long, but Professor Yamamoto, you specialize in researching Item 3, right? Could you please explain again the relationship between fashion design imitation and Item 3?
