Shape Trade Marks are in Fashion : A Study of Footwear and Sneakers In Australia

The evolution of the sneaker from sports equipment to high-end fashion, is one of the most significant sartorial transformations in recent history. Expanding demand and competition in the sneaker market (driven by a new interest in fashion by men) has meant designers are seeking more ways to protect the overall appearance of their shoe designs. Analysis of registration data shows that empirically, the sneaker revolution has increased demand for Australian 3D shape trade marks as an adjunct to, or replacement for, registered design rights. This chapter discusses this trend as a cautionary tale for those who might call for a sui generis design right for fashion and points to peculiarities of culture, commerce and law that impact the optimal matrix of rights related to fashion