Basotho Designers Stitch Creativity into a Copyright Blind Spot

RETHABILE MOHONO

MASERU-A designer spends hours sketching a pattern, choosing fabric, cutting, stitching and perfecting a garment until it becomes something uniquely their own.

Then someone else copies it.

For many Basotho fashion designers, that is where the problem begins,  not necessarily because the law offers no protection, but because many designers do not know what protection exists, where to obtain it or what happens to their designs after they leave the studio.

Intellectual property in Lesotho’s fashion industry remains a largely unfamiliar concept, with designers often concentrating on producing and selling clothes while paying little attention to what happens to their creative work afterwards.

The problem is not new.

It has persisted for decades, and even some professional designers still do not know where or how to register their intellectual property.

For Mabeile Malataliana, a fashion instructor at Thaba-Tšeka Technical Institute and founder and creative director of Lost in Lesotho, that lack of knowledge became personal.

Malataliana founded Lost in Lesotho in 2016 and began operating it fully in 2019. Since then, she has dressed prominent people in and outside Lesotho, including musicians and beauty queens.

She says she invested much of her time and energy in building the brand and positioning it within Lesotho’s creative industry, while also looking for international opportunities.

Her work with the Lesotho Beauty Association and Lesotho Equestrian Association gave her opportunities to dress models for photo shoots and international tours.

Those platforms brought her visibility.

They also exposed one of the risks facing designers: duplication.

“At first, I couldn’t find it problematic since I found it inspirational to the fans of beloved queens,” Malataliana told this publication.

That attitude changed after what she describes as a “very tiring incident” involving a National Exhibition held in Dubai through the Ministry of Trade.

It was around the time of COVID-19, she says, that one of her designs was stolen.

The experience made her realise that protecting her creative work was not simply an optional extra.

“I realised that it’s very important to copyright my work,” she said.

Malataliana also makes a serious allegation about the treatment of local designers, saying that even government structures that promote local products can end up taking designers’ patterns and giving them to their friends and family.

Her experience illustrates why intellectual property matters in fashion.

A garment is not simply fabric sewn together. Behind it can be an original pattern, illustration, textile print, brand identity, design concept or other creative work.

Yet for many designers, the business ends when the garment is sold.

The law, however, sees several different forms of intellectual property that can apply to the fashion industry.

Copyright can protect original textile prints, illustrations, fashion sketches, photographs and certain original artistic elements. It generally protects the creative expression rather than the underlying idea of a garment.

Industrial design protection can cover the appearance or visual features of a product, including its shape, configuration, pattern or ornamentation, depending on the applicable law.

Trade marks protect brand identifiers such as a designer’s name, fashion label, logo, symbol or distinctive branding.

Trade secrets can protect confidential commercial information, including unreleased designs, manufacturing techniques and supplier information.

Patents may also apply where a designer or business develops a genuinely new technical invention, such as innovative textile technology or a functional garment mechanism.

For a fashion designer, therefore, protecting a creation is not necessarily about one registration covering everything.

It is about understanding what has been created and which form of intellectual property protection applies.

According to the Ministry of Justice and Law and Parliamentary Affairs, the Registrar General’s Office (RGO), also known as the IP Office of Lesotho, is a section within the Attorney General’s Chambers.

The office provides registration of legal rights relating to patents, trademarks and industrial designs, alongside other services including the registration of societies, marriages, citizenships and publications.

It is also responsible for collecting government revenue and acts as custodian of national records relating to those documents.

Its clientele includes rights holders, government and the general public.

The office is affiliated with the African Regional Intellectual Property Organisation (ARIPO) and the World Intellectual Property Organisation (WIPO).

For a fashion designer who has created a new and distinctive visual design of a garment or fashion product, one possible form of protection is an industrial design.

Lesotho’s Industrial Property Order defines an industrial design broadly as a composition of lines or colours, or a three-dimensional form, that gives a product a special appearance and can serve as a pattern for an industrial or handicraft product.

An application to the Registrar requires, among other things, drawings or photographs of the article, an adequate graphic representation of the design, information about the type of products for which the design will be used and the prescribed fee.

Yet the existence of an office where designs can be registered does not necessarily mean designers know about it.

Nthabiseng Thakalekoala, a fashion designer speaking on behalf of members of the Council of Lesotho Fashion Designers, says intellectual property in fashion works differently depending on the brand and the individual designer.

Some brands, she says, focus on protecting products through their logos, while others need to protect patterns as part of their identity.

She gives the example of the Lesotho-branded umbrella, saying that whether it carries a logo or not, another brand cannot reproduce the pattern because the pattern is owned by House of Ellitha and Sontha, her brand.

But protecting designs remains a major challenge within the industry.

Thakalekoala says some designers copy the work of others.

She remembers a fashion show, made by Sotho Kids, where another designer showcased one of her designs  a piece that had been a showstopper in 2019.

She confronted the designer.

In that instance, Thakalekoala says, other people supported her because she had proof that the design was hers.

But she says such cases can be difficult because many designers do not formally protect their designs.

“In most cases you find that there is not much to do; designers don’t really patent their designs,” she said.

For Thakalekoala, the type of protection required also depends on the nature of a brand.

Some may need to protect their products through copyright because the logo is what differentiates them.

Others need protection for patterns, while some also need to secure their trade secrets.

That distinction is important because intellectual property is not a single umbrella that automatically protects every aspect of a fashion business.

A designer’s brand name may require a trade mark; an original artistic pattern may attract copyright protection. The appearance of a new product may qualify for industrial design protection, a confidential production method may need to remain a trade secret, a new technical invention may potentially qualify for a patent and the first step, therefore, knows what needs protecting.

For Basotho designers, the problem is that many have traditionally focused on the visible side of fashion, creating clothes while the less visible business of protecting intellectual property has received far less attention.

Malataliana’s experience demonstrates the cost of that gap.

What began as seeing duplicated designs as a compliment changed when her work was used in circumstances that made her realise she needed stronger protection.

Thakalekoala’s experience shows another side of the problem: even when a designer recognises that a design has been copied, the absence of formal protection can make it difficult to know what action can be taken.

The issue, therefore, is not simply about stopping people from copying clothes.

It is about protecting the creative labour behind those clothes.

A designer’s pattern can take time to develop. A brand can take years to build. A signature style can become what distinguishes one designer from another.

Once copied, that creative identity can become difficult to reclaim.

For an industry trying to grow beyond individual dressmakers into a stronger creative economy, intellectual property knowledge may therefore be as important as sewing skills.

Designers need to know where to register.

They need to know what they can protect.

They need to understand the difference between copyright, industrial designs, trademarks, trade secrets and patents.

And they need to understand that protecting intellectual property is not something to consider only after a design has been copied.

For Malataliana, that lesson came after a difficult experience.

For Thakalekoala, it came when she saw her 2019 showstopper being presented by another designer.

Their experiences show that the most valuable thing on a designer’s workbench may not always be the fabric, sewing machine or sketchbook.

Sometimes, it is the knowledge of how to protect the idea before somebody else claims it.

In Lesotho’s fashion industry, creativity is clearly being produced.

The question is whether enough is being done to ensure that the people producing it retain control over what they create.