Kylie vs Kylie, indie designers and Fashion Law

By Cristina Mora, Eproint

One of them is a long-renowned musical diva, a generational icon from Australia and an avant-garde fashion standard. The other one is a young woman from a well-known American family who, thanks to reality shows, has achieved huge international fame, currently being one of the most successful examples of personal branding. And although they do not seem to have much in common or nothing relevant to bring to Law, their famous names have recently made an echo in the legal world of Intellectual Property, specifically in regard to Fashion Law. They are Kylie Minogue and Kylie Jenner.

But, legally speaking, what relevance do these characters bring to Fashion Law?

Before studying the case, it´s important to define the concept of Fashion Law to help us understand its scope. This recent niche has been born to respond to basic legal needs of fashion, thus providing answers to questions that have been on the air since fashion has become globalized: doubts ranging from the rights of models and designers to the legal means to attack counterfeiters of products. Fashion Law is then a specialized sub-branch of Intellectual Property Law whose purpose is to gain a better knowledge of the legal aspects that the fashion world itself has adopted in response to an increasingly present need for regulation.

Photographers, stylists, publishers, designers, models, music and film stars, all of them are the subject of Fashion Law. And this is where the Kylie Minogue vs Kylie Jenner case comes in, a confrontation that end in Court for something as basic as their name, which they coincidentally share and is in turn a unique and distinctive sign of their respective businesses.

The Kylie vs Kylie case

The story dates back to 2015, when Kylie Jenner filed an application at the United States Patent and Trademark Office (USPTO) for the trademark registration of "Kylie". However, the application was immediately frustrated by Minogue, who claimed that her name is registered in the United States since the 1990s, not only as a musical star but also as a brand for products and even as a domain name (kylie.com ).

On first instance the USPTO ruled in favor of Minogue, in a ruling mainly based in the famous legal principle prior in tempore, potior in iure ("first in time, first in right"). The result obviously represented a blow to the empire that Jenner has been forming in recent years, so she quickly appealed the decision.

As lawyers, what can we learn from this real-life example? First of all that these types of cases, which are disrespectfully referred by many traditionalist lawyers as "banal", actually represent multi-million dollar industries that are hard to ignore because they are right there in our malls and our televisions. Hence the need to immerse ourselves and learn more about these new Law branches, rather than seeing them as mere accessories to the practice of Law.

Indie designers and the need to protect their creations

Latin America does not escape the influence of the fashion industry, achieving through its designers, photographers and models an increasingly strong presence in the fashion world. That´s a main reason for why it is imperative for the region to promote the precepts of Fashion Law.

An example of this growth can be seen in the case of Costa Rica, with events such as the Mercedes-Benz Fashion Week, which is a perfect representation of a commercial platform for national and regional designers who have become a key part of the promotion of creativity and talent.

However, as in many cases, the growth of this industry exposes problems and potential contingencies and risks. Recently, Hispanic indie artists and designers have emerged in a positive way, proving to be creators of endless designs and products that are increasingly influential in the fashion industry. But the creations of these designers have often been violated and copied by third parties without permission, since the lack of regulation and registry (possibly for ignorance of the creators of their rights and duties) weakens the protection of the Intellectual Property of their designs. This situation leaves minority creators with little chance of winning a legal battle if their designs are copied with bad faith and without permission from third parties.

Lawyer's responsibility with Fashion Law

Cases such as thew two mentioned above urge us lawyers to emphasize on colleagues the importance of specializing in these matters, placing in our hands the need of educating businessmen, clients and people in general who are outside the legal world. This is key to achieving further progress on issues ranging from mere regulation (eg contracts related to the fashion world) to advocacy (eg insisting on creators the importance of fighting illegalities that affect their Intellectual Property, such as counterfeiting).

For a lawyer, acting with diligence, legal strategy and speed makes an abysmal difference to the interests of the client, and if Fashion Law is embraced from the start by colleagues (as if it was a branch of traditional Law), cases such as those of Jenner vs Minogue would be covered more accurately, and million dollar mistakes would be avoid.

Fortunately, there is a gain in cases like "Kylie vs Kylie" and "indie designers vs industry giants", as both have achieved spaces in media, thus enriching Law which, faithful to its principles, mutates and evolves according to the reality that surrounds it. That is why our responsibility as specialized lawyers is to continue this struggle for recognition of Intellectual Property in an increasingly less traditional world.