El derecho de la moda en España desde una visión globalizada

Abstract

Fashion Law research is based on an interest that transcends the merely aesthetic and seeks to explore a regulatory framework above all characterized by its transversality. At the start of the study there was a lack of solid literature going beyond a timid presentation of the subject, so its research has been carried out using books and publications from other countries, articles, blogs, regulations, doctrine and jurisprudence, as well as being participants and spectators of its evolution through publications, seminars, courses and a constant interest in its development. Fashion law is currently recognized in our country, although it does not receive any specialized treatment. Proof of this is the existence of the Código de la Moda [Fashion Code], in which we can find the main regulations applicable to the industry. Furthermore, it can be considered a basic need with a constitutional space, in constant and direct relation to other fundamental rights. Within the fashion sector, the ways of protecting creations arouse great interest, which we can find in the specialized branches of Industrial and Intellectual Property commercial law, specifically in the legal figures of industrial design, patent, utility model, trademarks and copyright, which may coexist in the same product provided that the requirements specified in the applicable regulations are met. As can be seen, there is no shortage of protection measures; however, their application to the sector is sometimes complex due to regulatory shortfalls, conceptual gaps and disharmonization between doctrinal and jurisprudential criteria. Even so, fashion designs that have the characteristic notes of novelty and originality will be able to obtain industrial design protection, in addition to that of patent or utility model if, when incorporating an invention, its appearance is not exclusively imposed by its technical function. Moreover, the design will usually be protected by the brand that allows its distinction from competitors and, finally, if it is able to transcend the barriers of functional garments and has a superior creative level materialized in an objective originality, with a touch of novelty, which permits its artistic classification, it will also be protected by copyright. Other interesting issues in the sector are the procedures established at criminal and customs level to try to tackle the problem of counterfeiting; the variety of contracts that are essential to facilitate commercial transactions between the multitude of professionals who take part every day in the item’s production and marketing taking into account its global nature and the fleeting temporality of collections, with special mention of those made with influencers in which transparency must prevail; anti-dumping measures and legislative proposals that allow real and effective liability to be demanded in the face of unfair commercial practices of social and environmental dumping in third countries; and, finally, assess how the issue is addressed in other countries. In this case, the comparison of the Spanish legal system with the U.S. and Colombian ones reveals, on the one hand, a disparity with points of convergence between the first two and greater proximity regarding the third, since its regulations have a marked European and U.S. influence, taking into account that, thanks to the international treaties signed on the matter, some harmonization has been allowed, and, on the other, the conclusion that each regulatory system tries its best to adapt the legal resources at its disposal to the fast-paced fashion world.