Design and fashion: Procrustean metaphors in intellectual property law

The call for a definition of the regulation of fashion design develops from multiple influences and theories which interpret expressions and contributions communicated by designers, investors, trend-setters, observers, consumers and many others. For each participant, there could be a different definition of fashion design. Conversely, legal metaphors for fashion often do not reflect its variety, diversity and evolution as conveyed through the experience of apparel and accessories by stakeholders. This chapter challenges the current justifications and paradigms that apply to design law for fashion. It does so by way of an analysis of legal disputes emerging from disruptive societal and technological changes affecting the market and value of goods and services within the relevant industry. The chapter questions and rephrases the notions of scarcity and authenticity associated with exclusive intellectual property rights systems. It proposes that any legal recognition of fashion design should effectively accommodate a rigorous understanding of non-conscious design as experienced by creators, audiences and consumers.