Can IP help design fashion’s green revival?

As the industry finds solutions to its awful environmental record, lawyers will need to weave a variety of IP into the mix. Muireann Bolger discovers why "it's a really interesting time" for those working the space. 

While the latest ‘in’ colour may change with the seasons, fashion brand owners are finding the need to ‘go green’ is far from a passing fad.

But as it faces criticism over its own record in battling climate change as well as its less than impressive eco-friendly credentials, the industry is at risk, for once, of lagging behind.

Overall, this sector is responsible for 10% of annual global emissions—more than the aviation and shipping combined—according to the United Nations.

As Richard Penfold, partner and fashion IP expert at Withers points out: “The fashion industry is the second most environmentally damaging industry worldwide after the oil and gas industry. That’s pretty poor.”

Little wonder that this most image-conscious of industries is more than keen to shed such an undesirable tag. But it does beg the question: how exactly?

The answer for many lies with the potential offered by new technology, as well as recognising the variety of IP that can be applied.

More robust technologies

As Penfold notes, technology is emerging that is “far more robust” and environmentally-friendly than before.

“If you look at cotton for example, technology can markedly reduce the use of fossil fuels in the manufacturing process, improve efficiencies in supply chains, and reduce waste.”

3D printing, he continues, is another technology transforming the sector for the better.

Also known as additive technology, this generates less waste than traditional manufacturing processes as they require only a specific amount of material to create a product.

In essence,  this removes the uncertainty behind the quantity or volume of resources needed for a product’s assembly.

What’s more, 3D printing could save up to 90% of natural resources needed for manufacturing apparel, according to a study by the European Commission.

Fungal futures

In more good news, completely new—and far more sustainable–materials are quickly becoming a viable alternative to more traditional fabrics.

Providing an example, Penfold explains that his firm acts for a client in the e-leather space who creates synthetic leathers from fungi.

Indeed, the firm has negotiated R&D and collaboration arrangements on behalf of that client with some high-end manufacturers of leather goods to help them roll out much “more sustainable ranges of bags and other accessories”.

They’re in elite company—luxury brands such as Hermès, Iris Van Herpen, and Stella McCartney are also turning to fungal spawn, or mycelium, for an eco-alternative to leather.

The advantages are multifold: the processes involved in producing mycelium leather emit fewer greenhouse gases, use less water, and require less land compared to animal leather. Additionally, as a plant-based product, it is biodegradable and compostable—reducing waste in landfills.

According to Lisa Ferrari, partner at Cozen O’ Connor, the IP sector can play a much greater role than before in promoting the greater use of such ‘green’ innovation in fashion.

There are, she explains, a variety of developing technologies—in materials, in products, and in consumers’ interactions with brands—that “can improve the sustainability of fashion and reduce the negative environmental impact that fashion has become known for”.

Like Penfold, she points to the encouraging rise of eco-friendly textiles such as “vegan leather”.

And it’s not just fungal fashion that is brimming with potential.

For example, Danish fashion brand Ganni teamed up with Spanish material research company Pyratex to create a grey clothing collection made from a banana-waste biomaterial.

The three-piece capsule collection, which is designed to be a more sustainable alternative to traditional polyester tracksuits, comprises a fabric that combines waste from the banana food industry—-including leaves, trunks and branches—with organic cotton.

A new mindset

So where does IP come in? Increasingly, as well as providing more technology-focused advice, lawyers need to explore different types of IP protection than the fashion sector is used to.

And with that, don’t be surprised to see patents coming more to the fore.

As Penfold explains: “There may be a lot more of a focus on patent protection in the future for the underlying materials and processes to manufacture these novel products.”

Robecca Davey, senior associate and fashion IP expert at Marks & Clerk, predicts that patent specialists could become just as critical as trademark and design experts in the fashion field.

“The market is moving at an arguably unprecedented pace which has led to an incredibly exciting time for IP professionals. As a lawyer, it's a really interesting time to be at the forefront of this evolution, and ensuring that every client has the right protections in place at the right time.”

Davey is clearly passionate about what new technology can potentially offer fashion, and how IP can pave the way.

For example, she predicts that we could soon see digital fashion supplanting the worst excesses of so-called fast fashion—where retailers accelerate their production processes to get new styles to customers at a record pace.

This, in turn, leads to significant environmental damage, the exploitation of workers and adversely affects wildlife.

Davey believes that it is Generation Z—those born during the late 1990s and early 2000s—who are pioneering change by embracing digital fashion

“We see many young people buying outfits in virtual gatherings, using highly sophisticated technology that is so realistic and so fantastic that I think that it will eventually take over. The ability to try on clothes virtually could even deter many from fast fashion.”

Old spaces, new tech

And there’s good news for those who miss the thrill of browsing an actual brick-and-mortar shop before whipping out the credit card. Virtual fashion, predicts Davey, is going to play a much larger role in these venues.

She points to the emergence of so-called ‘smart mirrors’ that allow shoppers to virtually try on a garment and provide sizing recommendations.

For example, tech company ‘My Size’, launched an interactive, mirror-like touch display that provides shoppers in physical stores with an enhanced, online shopping experience and contactless checkout.

“I think this is an interesting development because of the tendency of people to over-order things, ie, in different styles, colours or sizes—because they are unsure of what they need,” says Davey.

Such unsustainable shopping habits, she adds, lead to wasted packaging for the additional items, as well as unnecessary transport when delivering and returning the unwanted clothes,

“If customers could just guarantee that they are ordering the correct size, that they’re happy with how it looks on, and only buy what they actually need—that would be a massive win for sustainability.”

The rise of such smart tools, she suggests, prefigure “a whole different way” of protecting your IP.

“The big question is, does your trademark/IP protection strategy need to extend to cover digital goods, as well as real world goods? It’s definitely a conversation that should be happening,” she explains

Pointing to the “crazy statistic” showing that 85% of all Gen Z have an avatar, she stresses that the virtual realm, aka the metaverse, “is not going away”, and that companies “need to really make sure that they're protected in that space”.

Then there are the potential copyright issues hovering over the software platforms used to create digital fashion—especially when artificial intelligence (AI) is involved.

“A lot of these platforms depend on AI, but it’s important to ensure that the person that's operating the platform actually owns the IP in use, and avoid any future copyright issues.”

Preloved risks

Elsewhere, the preloved market is fast emerging as a burgeoning and more ecologically friendly alternative to fast fashion.

According to online secondhand platform Thredup, the resale market will be worth $350 billion by 2027 and that, once more, Generation Z will be leading the way,

As Ferrari explains: “Brand owners are developing new business models around second-hand sales, which allow for the recycling of clothes and merchandise, and which avoid the enormous waste from the destruction of barely used products.

Penfold agrees, pointing out: “There's a plethora of technologies there that the industry has at its disposal now, and it is working towards better use of recycling and upcycling.”

But while this market seems to be laden with potential, there is also plenty of scope for missteps and IP disputes.

For example, last month Chanel won its long-running case against luxury reseller What Goes Around Comes Around (WGACA) in a federal court in New York.

The French fashion house insisted that WGACA was selling counterfeit bags and non-genuine Chanel items that were not made for sale by the brand, such as display-only items, and that WGACA had implied affiliation with Chanel via advertising and marketing materials.

WGACA countered that it never sold counterfeit items and that its rigorous authentication process avoids selling a non-genuine or counterfeit product.

In response to the judgment, a WGACA spokesperson issued a defiant statement.

“[The] verdict was not about not selling a counterfeit, it was about WGACA selling items which were voided in Chanel’s database.

“Without any access to this database the resale industry would not know the status of these serial numbers. We continue to stand by our 100% authenticity guarantee.”

A job to do

Commenting on the case, Zachary Briers, partner at Munger, Tolles & Olsen, is cautiously optimistic about the resilience and future of the second-hand/resale marketplace.

“While the verdict is a win for luxury labels and their ability to control use of their trademarks, it likely does not foretell the end of the secondhand market,” he says.

But, he cautions, it is still a blow for this particular market and will make it far more costly for secondhand platforms to operate, “which is significant”.

Undoubtedly, a slew of challenges remain for the sector.

As Penfold puts it: “The industry is painfully aware it has a job to do, but it won’t be solved overnight.”

That may be true, but it seems that better, and smarter use of IP tools, and new technologies could help it get the job done faster.

As Ferrari concludes: “The more that sustainable fashion and the environmental impact of fashion choices have become important to consumers, the more that adopting sustainable technologies has become critical to success in the fashion business.”

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