Brand Collaborations in Fashion and IP Rights
Brand collaborations are one way of making people excited for upcoming fashion releases and often result in whimsical, outlandish items where two brand identities meet to create a one-of-a-kind aesthetic which can often become mainstream in the word of fashion.
The Adidas x Gucci collaboration brought to light iconic pieces such as the Gucci bucket hat. In 2021, the viral 2021 Yeezy Adidas created the “not-so-sneaker” silhouettes of the Spring/Summer 2021. Stella McCartney famously pioneered the sports-fashion tie-ups partnering with Adidas and now Jacquemus is launching a 15-piece collection in collaboration on 28th of June with Nike. Adidas x Gucci made headlines on social media in Asia when the public reacted to a 1,300 GBP sun umbrella which was not waterproof. Even fast fashion brands have jumped on the trend to create collaboration capsule collections, in 2013 H&M caused a stir with its collaboration with Isabel Marrant causing long queues and sell-out.
What IPR is created?
Fashion collaborations result in the creation of new intellectual property where new products, services, or other material is created. New intellectual property rights (IPRs) may arise including trademarks, copyrights, design and even patents. The latest ‘Fendace’ collaboration is a product of the fashion crossover between Fendi and Versace. The WIPO has approved a joint application for trademark filed by the parties for the wordmark Fendance which implies a joint ownership of the IP assets.
It is important for brands to consider the ownership and management of such valuable intellectual property rights. IPRs ownership will not always be straightforward as it depends on the type of collaboration and the specific terms agreed between the parties. Establishing clear legal terms will ensure the outcome of desired commercial milestones/results and help with management of potential IP disputes.
IP collaboration scenarios
Versace and Fendi have birthed Fendace, a playful take on collaboration where the fashion house designers Donatella Versace and Kim Jones switched roles. You have to make it to one of the forthcoming Fendace pop-ups to experience the complete collection; otherwise, Fendi and Versace's websites will stock a separate selection of goods (Fendi will sell select "Versace by Fendi" items and vice versa) alongside a unified assortment of Fendace-branded pieces. fused both brands’ design hallmarks and ethos into two collections. The designers did a full creative swap, with Versace creating a “Fendi by Versace” collection, and Jones and Fendi’s Silvia Venturini Fendi creating a “Versace by Fendi” collection.
The collections will also partially be available for purchase at Fendi and Versace websites and retail boutiques. Versace stores will offer pieces from the “Fendi by Versace” collection, while Fendi stores will offer styles from the “Versace by Fendi” collection.
Do they jointly own IP or separately?
Different merchandise is sold separately on website of the parties does not necessarily imply a potentially distinct ownership. An indication is the joint trademark by the two fashion giants but one would need to delve into the specifics of the IP collaboration agreement between the parties to understand how all IP aspects are treated.
IPR Collaboration agreement
In most fashion collaborations, an IPR collaboration agreement will deal with all commercial aspect of the joint venture between the brands. A joint venture does not create a separate legal entity but merely establishes the relationship between two parties seeking the development of a single enterprise or project for profit, sharing the risks associated with its development.
The content of a collaboration agreement will differ depending on the nature of the venture.
Collaboration agreements are private commercial arrangements between parties and while there is no statutory legal obligation to have them in place it is definitely wise to have written terms in place. Some key clauses typically found in an IPR collaboration agreement include:
Duration and termination
Schedule of deliverables and timelines
Confidentiality, exclusivity and permitted use
Publishing and reporting
Funding
Payment
Liability and Indemnity - including for infringement claims
Detailed provisions around the IPRs at stake
Who owns the IPR?
When negotiating a contract, both parties will need to agree on who is best placed to own, protect, and commercialize the project IPR, as well as ensuring that their own individual brands and associated goodwill are not jeopordized and that overall brand reputation is maintained, notwithstanding the collaboration.
While joint ownership of IPR is possible, it is not always necessary and may not be a preferred option.
An appropriate licensing arrangement can protect both parties’ interests and provide the rights needed to commercialize the IPR. Background IPRs, refer to intellectual property rights previously created, usually remain and are exploited by the originally owner and creator. Parties will likely want to ensure that they own and retain all right, title, and interest, worldwide, in any and all of its IPR preexisting before the effective date of the relevant agreement.
It is important to determine the strategic ownership of intellectual property rights and whether those will be jointly owned or whether one party will own the intellectual property and grant the other party or parties to the collaboration a license to use the intellectual property for the purposes of performing the project. A license may also need to be granted to the parties’ contractors, advisers or consultants.
In conclusion, it is necessary to obtain expert intellectual property and legal advice as to ensure an optimal approach to drafting an IPR collaboration agreement.
If you have any questions on intellectual property rights or your future brand collaboration please contact us via info@gerrishlegal.com.
Article by Anthi Pesmazoglou @ Gerrish Legal.