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It is often said that “fashion is an eternal new beginning”.

THE BACKGROUND: the DNA of a Fashion House: If there is one aspect of fashion which has become an important, if not a vital concern over the last decade for industry players, it is that of archives.

Fashion archives are designed to keep trace of the creative, aesthetic and artistic heritage of a fashion or ready-to-wear House. What artistic director has not delved into his or her House’s sources to soak up the DNA of the label and draw inspiration from it, whether to relaunch or reissue past models (which may already be iconic), or to reinterpret or reinvent them to current-day tastes and techniques, by “twisting” them with talent to revamp them. These new creations are enhanced in value in that they bear the seal of the House’s heritage and are thus seen as desirable in the eyes of clients who, in seeking authenticity, recognize in them a feeling of belonging and token of recognition.

It is also referred to the House’s heritage to link back to its know-how (in particular its craftsmanship) and legacy, to promote its trademark by strengthening its image, its prestige and its success, following a sharp communication and to lay down a bridge between yesterday and today, thereby nurturing its “story telling” with a receptive  public. It is clear that the world of fashion increasingly refers back to its past creations.

A LEGAL NECESSITY: Although Houses may have understood the value provided by such a heritage, in particular in terms of creativity, to develop a sales speech and strengthen a company culture, one may regret that they are not always aware of the importance that it can also have legally wise.

Archives are capable of providing “ammunitions” to lawyers and their Counsels on protection and enforcement issues, pertaining the House’s creations, designs and collections, be it past, present of futures ones. They prove to be a significant asset in the defense of their day-to-day interests to substantiate their arguments when facing difficulties in intellectual property matters.

Instead of addressing the traditional protection array available for fashion creations, we thought it would be more interesting in this newsletter to tackle the archives’ subject, not much discussed in our field, despite the benefits the Houses can derive from it to consolidate the rights to this intangible asset that constitutes their heritage fund, so essential to the fashion and apparel industries.

THE DEFINITION: According to Article L.211-1 of the French Heritage Code (Code du Patrimoine), archives are defined as “all documents, including data, regardless of their date, their place of storage, their form and medium, that are produced or received by any private individual or legal entity and by any public or private service or body or department in the course of their activity”.

In fashion, it can be all the documents, objects and materials which map out what has been imagined, tailored, presented and marketed over the life of a House. It constitutes a precious asset if preserved, referenced, inventoried, protected and exploited in-house.

AN UNPARALLELED PIECE OF EVIDENCE: Such documents may be used as evidence in the context of the acquisition and exercise of intellectual property rights relating to creations, designs, collections, etc. that a House wishes to protect.

IN COPYRIGHT AND DESIGNS: Archives are material to prove the existence of copyright through determining the identity of the author and establishing the date of creation. In France, as in other countries, copyright arises simply through the act of creation (subject, in particular, to the requirement of originality of the artwork) and there is no procedure for registration with an IP Office issuing a title.< It is thus necessary to safeguard materials constituting evidence so as to be able to prove the existence of such rights.

These documents allow, in particular, to identify the person or persons at the origin of, or who may have contributed to, the design, the making of the designs and collections, and may serve to check that their copyrights have been assigned to the House.

Archives also make it possible to establish a date of creation, or even of first disclosure of an artwork to the public, and thus to review its possible protection under design law.

For new designs wholly or partly inspired by earlier creations of the House, the archives will make it possible to establish a link of continuity therewith in relation to its features, through reference to its codes, so that the public can directly attribute its origin to the House.

IN TRADEMARKS: Archives are also of primary importance for trademarks, in attempting to overcome objections issued by IP Offices raised against trademark applications, due to an alleged  lack of distinctiveness on the grounds that the sign for which protection is sought would be confused, for example, with the appearance of the goods claimed in the application. This is the particular case of trademarks made up with patterns (such as a print, the surface of a material).

To rebut that, on the contrary, such a sign meets the distinctiveness requirement, and that it differentiates  from the norms and customs of the sector and the market to which the goods belong, the applicant could  file any documents arising from its patrimonial fund, enabling it to demonstrate how that sign differs from the goods with which it will be associated or affixed, and that it has specific features, a striking or eye-catching character likely to confer, at the very least,  a minimum degree of distinctiveness. Such material evidence may also  support arguments that the sign at issue has acquired, at the date of filing, a distinctive character owing to the use made thereof, and prove that it is capable of identifying the commercial origin of the goods to the public, and that it thereby fulfills the essential function of a trademark.

This is of practical interest when it comes, for example, to consolidate the protection through trademark, which had not previously been considered in the country of origin and/or abroad (bearing in mind that, that legislations vary and are more or less stringent and not homogeneous), which may be cumulative with that conferred by other rights (such as copyright), and subject to meeting the validity conditions.

ON A DEFENSIVE BASIS: The other field in which archives are highly valuable is that of the defense of intellectual property rights when they find themselves in conflict between different operators. Infringement disputes are a good example. In attack, the right holder will have to establish and prove the existence of its earlier rights over its creations, designs and collections for example through asserting its copyrights and design rights, to have an end put to acts of infringement from third parties and ensuing damages.

To defeat a claim and/or an action directed against it, a House could notably ascertain in defense that it holds anteriority over the allegedly infringing models or may assert a lack of follow up or parasitism with regard to the opposite model.

Similarly, it could dispute the validity of the rights held/asserted by a third party on a design by relying on a relevant earlier artwork, that destroys the condition of novelty attached to the design at issue, whether in the context of a nullity action brought against said model or a counterclaim raised in defense in an infringement action.

Often, the outcome of a trial depends largely on the evidence submitted in the proceedings. The more the documents filed are numerous, dated and conclusive, the stronger the case and the better the chances of success will be.

Similarly, archives may be valuable tools to support well-known character claims aimed at establishing the fame of the brands of a House with IP Offices and/or courts. Such a status will arise in particular from their seniority, prestige, acknowledged craftsmanship, the existence of iconic goods, the talent of their founders and successive artistic directors, a public recognition and a proven commercial success, obtained over the course of its existence. Such recognition always strengthens the defense of a House’s rights, especially in cases where chances of success would be mitigated. It should be looked for to the greatest possible extent.

IN TERMS OF COMMUNICATION: A communication to the public as to the seniority / precedence of a House’s creations and designs, to contextualize the launch of new products in their wake, can deter third parties from reacting against them, failure to validly argue about the existence of relevant prior rights.

AN INVALUABLE ASSET TO BE CONSTITUTED AND PRESERVED, WITH DATED DOCUMENTS: Lastly, it should be noted that archives also constitute a prime immaterial asset in case of sale of the House, and that the existence of a rich and full record patrimonial fund can only encourage investors with a view to pursuing and developing its business, its reputation and its “brand equity”. This aspect should not be neglected, having regard to the importance of the value, in particular the pecuniary value, attached to these assets.

Ideally, Houses should, from the outset (i.e., including and especially for their very first collections), embark on the path of making their collections part of their heritage by building up full and lasting archives. They must ensure that working documents, objects, materials, are kept, inventoried and saved, to go from day to day use to pieces of history and so, ultimately, become valuable.

If these elements are available from the outset, the legal team will be able to exploit them for the needs of their cases, saving both time and money.

On the other hand, when this is not the case, or when there are gaps in recollecting the history, it will be in the House’s best interest, including from a legal standpoint, to reconstitute that heritage from external sources.

This may be achieved through historical investigations, market researches, and the purchase of past items or goods from fashion vintage specialists, from private individuals, from museums or even sometimes at auctions. Such reconstitution of archives will incur significant costs, with time constraints and with the risk of non-exhaustiveness on the information sought when it is required to go back in time to periods before the existence of electronic records.

Even though this would require significant human, material and financial resources, Houses are strongly advised to equip themselves with appropriate means to align with the logic and approach of “archive management and conservation” of the intangible asset that is their heritage to date.<Knowing how to preserve, organize, catalog, manage and protect archives has become essential today.

As to what to keep, we would advise to collate everything which can serve to reconstitute the genesis of a design or collection, from the context of creation, to dissemination and marketing. This means all material items capable of bearing witness to the style, cuts and materials, techniques and know-how, codes, vocabulary, DNA, identity,  the touch of its Founder and his or her successors, that are specific to the House and thus to its history and heritage. A great diversity of items can illustrate this, for example such as the designs themselves, prototypes, original preparatory sketches, mood boards, fabric samples, bibles (“bibles” in French), imprints, collection boards, handling sheets, working tools (stockman, hat or shoe lasts), programs, photographs and and catwalk shots, press kits, advertisements and publicity campaigns, awareness surveys, photographs of designs displayed in exhibitions or retrospectives, and related catalogs. As well as sound and audiovisual archives, publications of all kinds, works of art, furniture, etc. So much useful information collected and preserved on previous and current creations and collections of the House.

{According to Rémy Côme’s  relevant formula, “archives are time capsules{1>[1]<1}”.

IN SUMMARY: As succinctly put by Sonnet Stanfill, fashion curator at the Victoria and Albert Museum,”if you want to be a so-called heritage brand, you have to be able to tell the story through objects”.

The success among the general public of exhibitions such as those devoted to Yves Saint Laurent at the Petit Palais in 2010, Jean-Paul Gaultier at the Grand Palais in 2015, Christian Dior at the Musée des Arts Décoratifs in 2017, or to Gabrielle Chanel currently at the Musée Galliéra, and the opening of museums dedicated to great “Couturiers” / Houses such as those of Gucci in Florence, Yves Saint Laurent in Paris and in Marrakech, Christian Dior in Granville, etc. are the perfect illustration of this.

This awareness appears to have spread even to ministerial circles.<Further to the report on fashion heritage by the then director of the Palais Galliera, Oliver Saillard, the former Minister of Culture, Mrs. Audrey Azoulay, had decided to create a “French Fashion Heritage” label with the aim of highlighting the exemplary conservation work of certain Fashion Houses and brands.

At a time when artistic directors are pressured to expand their annual collections, when they may have to change Houses, archives have become an anchor point enabling them to hold on to the history and identity of a House. That’s how they can take up the newness challenge, turn it into a strength that sets them apart from their peers and competing Houses operating in a very competitive market, and nourish the public’s appetite for their creations. And it is the role of the Legal Team to assist the Houses in opening new chapters in its history.

If it is true that “fashion comes and goes but style is eternal [2] 1}, archives should thus have a bright future!

Our firm is at your side to assist you in the organization and conservation of your archives, whatever your field of activity.

Séverine Coest is a French IP Attorney and European trademarks and Industrial Designs Attorney. She joined the firm Santarelli in 2006. She advises and assists clients of varied profiles, including large French companies, in the management of their portfolios and in the defense of their rights both in France and abroad.

[1] Rémy Côme is an expert in contemporary and C20 decorative arts and former head of the Conservatoire des Créations at Hermès from 1993 to 1997, cited here from the article “Les archives mode sont-elles devenues un business?” [“Have fashion archives turned into a business?”] published on April 4, 2018 on the Fashion Network website.

[2] According to Mr. Yves Saint Laurent