Milan Fashion Week and Fashion Law Trends – The endless boom in sportswear: patent protection for textile technologies

As more people commit to live (or at least to post on social media) an healthier and more active lifestyle, the sportswear industry is seizing the opportunity to grow like never before.

The reasons behind the flourishing health craze so popular in the western world are many, complicated and interconnected. If the pandemic played a key role in reshaping people’s priorities and bringing a newfound appreciation for outdoor activities, wellbeing and self-care, Tik Tok’s trends like #thatgirl and #gorpcore amplified the idea that being active, climbing a mountain and having a 10-steps Korean skincare routine is cool.

Apart from any possible speculation on the triggers of this trend, what is sure it that it is not going to fade soon. According to the McKinsey report on the sporting-goods industry, the global sportswear market is expected to grow 8 to 10 percent a year up to 2025, from €295 billion in 2021 to €395 billion in 2025. Sales are even increased by an effect that researchers call “enclothed cognition“. In simple words, not every sportswear consumer will then exercise regularly, but buying the clothes makes that behaviour more likely. As stated by Joris Fonteijn, Chief Product Officer at Crobox – “wearing running shoes is halfway towards the behavior of running. Clothes can set your intention from the beginning, and with activewear, that intention becomes ‘being active’“.

But if companies are making sports products into fashion statements, consumers are not satisfied just by the “appearance” of the garment. Performance, functionality and comfort are in fact emerging as a priority across core industry players. For example, recycled materials and water-repellent technology stand out at Patagonia, stretch and wicking technology at Columbia, comfort textures with a sculpting effect at Alo Yoga.

Needless to say, these technologies have a pivotal role in the success of a product, as they can be claimed in adverting campaign and exploited to differentiate the brand from competitors. But what is the best way to protect such features, legally speaking? Well, the answer is patents.

Indeed, although patents do not immediately come to mind when considering the fashion industry, they are the best possible tool in sportswear and leisurewear, as technical innovation can really put a fashion company ahead of the competition. Also, patents confer long-lasting protection (i.e. 20 years from the filing date), reflect technical superiority and secure exclusivity on certain fabrics and functional shapes.

As know, in order to be patented, an invention shall meet certain requisites, according to the Italian Intellectual Property Code. Specifically, the invention (i) shall be lawful, (ii) shall be suitable for application in the industrial field, (iii) shall be new, and (iv) shall not be obvious, that is, it must not be a natural evolution of the state of the art.

In the event the new and original solution is found by the brand’s internal team it will be of essence to identify the market where the products embodying the invention will be sold, in order to choose the extension of the patent, considering that the rights conferred by it are territorially defined.

Moreover, a brand equipped with an internal team of inventors, shall keep particular attention to the employment agreements entered with them. Under Italian law, agreements with employees that are likely to create IP should in fact include (i) a statement that the employee is being hired to conduct inventive activity (e.g., to create intellectual property and technology) and (ii) a statement that the company will pay the employee ad hoc compensation for the resulting IP. The same applies if the inventive activity is carried out by an independent contractor.

Yet, not all brands are big and experienced enough to have an internal office dedicated to technical inventions, with the effect that the patented technology may be used under license. This is wat happened, for example, to Novozymes, a Danish, biotech company which developed and patented a technology for the treatment of “stone washed” denim jeans. The technology, patented in 1987 and based on an enzyme which removed some of the indigo dye from denim, has subsequently had an incredible success, being licensed worldwide.

With this in mind, we believe that the booming sportwear industry may also lead to new partnership occasions between brands and biotech companies or even university research groups working with textiles. Indeed, if the fashion industry in general has always heavily invested in trademarks and registered designs to protect shape and appearance, consumers’ inclination to buy comfortable yet innovative garments (whether as a peacocking behavior or for real athletic performance) could mean a rise in patent registration opportunities.

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