Fashion Law in Brazil: a collection of concepts, skills and trends

Despite the relative novelty of the concept, Fashion Law is starting to get the spotlight and this shouldn't be a surprise. The fashion industry is the second largest employer in Brazil, with a 9.5 million strong workforce. The country also holds one of the largest textile supply and production chains in the world, second only to Asian markets. Before the pandemic, it generated BRL185 billion per year. With such a robust business to manage, lawyers in the industry require a unique set of skills.  Senior Researcher Olivia Narazaki talked to several experts in the field to understand the evolution of this practice and the latest developments around it. 

The concept of Fashion Law was introduced in 2006 by Susan Scafidi in New York. In Brazil, the idea of Fashion Law as a field of expertise is even newer, but there are clear signs it is starting to gain traction. The creation of a Fashion Law Commission in the Brazilian bar association, OAB, in 2016 and the increase in the number of courses dedicated to this area are significant examples. 

However, there is not yet specific legislation regulating the sector. Regina Cirino Alves Ferreira, Coordinator of the post-graduation Fashion Law course of Santa Marcelina College, says this is not required for the specialisation to flourish: "Fashion Law does not represent the emergence of a new law practice. But it refers to the analysis, study and creation of legal policies aimed at a very complex sector full of particularities that demands not only multidisciplinary legal knowledge, but the understanding of the production chain, the business model adopted, the profile of the assisted client and other elements."

In fact, the legal framework of fashion may include aspects of a wide range of practices, including tax, corporate, labour and intellectual property expertise, among others.

Maria Fernanda Cury, partner at Desio Senra Advogados, says this combination of practices is highly demanded in Brazil: "This sector is characterised by an immense dispersion of players at all stages and by a unique variety of ways of acting, from companies operating in the fibre and filament segment to sales to the final consumer."

The specialists agree that one of the main obstacles for the industry in Brazil is informality. According to Elaine Zanão Lapetina, general counsel of Alpargatas, a major shoemaker, informality exposes industry players to greater risk. She points out that the high tax burden over the industry has traditionally pushed other governance elements off the top of the priority list as companies fought to survive in a difficult and highly competitive business environment.

In fact, in addition to being the world's second highest polluter, the fashion industry faces severe criticism for ethical issues such as slave labour, cultural appropriation and green-washing. The overall informality in which the market operates has made it harder to tackle these matters.

However, this is rapidly changing. A new generation of consumers, who are much more attentive to corporate practices, is increasingly demanding products and brands that champion socially responsible practices.

Lapetina points out that the legal department plays a key role in making sure companies adopt the best practices in the whole chain of production and distribution, which involves choosing suitable raw materials, fair working conditions, and monitoring the supply chain. In fact, a very good knowledge of compliance with ESG (Environmental, Social and Governance) aspects will be required from any expert in the field.

Another important element of Fashion Law is centred around intellectual property. Many times, conflicts between fashion companies are related to trademark or design matters. Lapetina expresses her concerns about IP issues, especially in Latin American and Asian markets. "As an innovative company there are always complex matters involving the protection of our trademark, products and creations. In more developed regions such as the US and Europe, you have more legal maturity to handle these aspects."

Legal measures can be taken to assist companies in those cases. Professor Ferreira says companies may centralise the production internally, which would prevent a given creation from being improperly accessed and appropriated even before its release. She also mentions the importance of documenting the creative process, which can be used as evidence in a case of conflict.

Cury says that registering the intellectual propriety is but one of the steps necessary to ensure protection. "Currently, the orientation is to focus on a global and recurrent protection of the brand, including its visual aspects, industrial designs, image and identity," she says.

Although Fashion Law as a concept is still in its early stages, the sheer size of the industry in Brazil and the level of complexities faced by business means there is fertile ground for the development of a highly specialised practice. Those capable of helping clients thrive in this challenging legal framework will be increasingly demanded. As fashion evolves into a more responsible and sustainable business, these professionals will also be at the centre stage of a significant transformation.