Updated: Sep 5, 2019
What are the laws for cultural fashion?
The aim of this blog posts series run by the Cultural Intellectual Property Rights Initiative is to introduce our public to some of the wonderful and precious handmade crafts produced all over the World, which are the expression of ancient traditions and traditional knowledge. In addition to that, we will complement your reading with information on the legal protection provided by the Country of origin to its traditional cultural expressions and cultural heritage.
After Vietnam, the second date with traditional craftsmanship of the World will bring our readers to a country which possesses more than 30.000 cultural properties: Japan.
And since we talk about Japan we cannot avoid talking about the most worldwide known traditional textile originating from Japan: the KIMONO.
The Kimono, literally meaning the thing to wear (“ki”: to wear, and “mono”: thing), was born during the Yamato period (300 – 710 C.E.) because of the increased demand of fine textiles – by the aristocratic class first and later by the ecclesiastics with the introduction of Buddhism.
The Kimono was daily worn until the 19th century when it started to disappear under the Meiji period because of the Westernization. In fact, nowadays this traditional attire can only be seen during special or formal occasions such as weddings (usually worn by the bride and the groom but sometimes even by guests), graduation ceremonies, funerals, tea ceremonies, within restaurants serving traditional Japanese food, summer festivals, and during events of Japanese traditional arts (when creating Ikebana flower arrangements or worn by Sumo wrestlers).
Kimonos can be made of silk, hemp, cotton or ramie. The motifs, colors and designs put thereon, the way of production and dying, and even the methods (styles) of wearing constitute Japanese cultural heritage.
Young women usually wear Kimonos with bold patterns, colorful or floral designs, while men or older people wear dark colors. During weddings the bride wears a white kimono (Uchikake), and the groom a black one: since during funerals both genders wear black Kimonos the tie is the distinguishing element of the male Kimonos for the two occasions - white for weddings and black for funerals.
Kimonos are perfect for every season since it is possible to add layers for colder periods and to modify the breathability adjusting the dimensions of the sleeves. The Kimono used during hot summers is more informal, made of cotton or synthetic fabric and stencil-dyed and it is called Yukata.
The cost of Kimonos will vary depending on the fabric used. The cost of a handmade silk Kimono for special occasions can reach up to 1 million yen (around 9.000,00 EUR).
The handmade production of Kimonos is complex, involving around one thousand processes and several years to perfectly master a single technique which is usually transmitted from generation to generation within a family or within training school programs.
Even if the appearance of Kimonos transmits elegance and dash, the method of wearing a Kimono must also be inter-generationally taught. There is a specific sequence to be meticulously followed: white socks (tabi), the undergarments (a top and a skirt), an under Kimono wrapped with a belt, and finally the Kimono, with the left side over the right one, and secured with an elaborate and decorative sash called obi.
Geta is traditional Japanese footwear, handmade produced for centuries. They are wooden sandals composed of three parts: the “Dai”, that is the sole on which the foot rests, the “Hanao”, that is the thong made of cloth which holds the foot passing between the big and the second toe; and the most characteristic part of Geta which is the “Ha”, the two teeth at the bottom supporting the sandal. The very first Geta sandals had just one tooth in the middle of the sole on which the sandal was propped up (tengu-geta).
They were firstly worn by merchants and sushi chefs who wanted to keep their feet and attires away from scraps on the floor: in fact, the height is still justified by the purpose of avoiding the kimono getting dirty by mud, snow and rain. Geta are handmade in order to fit the season for which they have to be used: the ones for the rainy season (Ama-geta) have the Ha (the teeth) high up to 18 centimeters while some Geta possess a metal layer under the base to prevent slipping while walking on snow.
Other traditional types of Geta sandals are the Okobo, the ones used by Geishas. Okobo do the supporting teeth anymore but one single wooden “platform” with the toe slanted at the front. They are also called pokkuri, bokkuri or koppori because of the sound that they make during walking.
The Tetsu-geta, used by students of martial arts in order to build strength in their leg muscles, are made of iron and they can weigh from 3 up to 5 kilograms.
Nowadays, Geta sandals are no longer worn daily and for this reason one can often encounter older people affirming with nostalgia how they miss hearing the traditional clapping of these shoes on the streets, a sound called karankoron.
Geta sandals are usually used under the Yukata kimono. As such, during hot seasons, summer festivals and fireworks the color and fabric of the V shaped thong is generally chosen taking into account the design of the obi (the sash) of the kimono so that they match each other. It is possible for the thong to break, but there are still many traditional craftspeople able to fix them: however, better to avoid cheap Geta sandals since the breaking of the strip is considered as a sign of bad luck.
There are many kinds of wood used to produce Geta, but the preferred one is cedar wood because of its natural look and its soft grain.
The design of the Geta would lead us to thinking that keeping balance on this kind of sandals is itself a challenge, however the design of the Geta facilitates keeping the natural posture and helps improve strength and balance.
Traditionally, the right pair of Geta suitable to wear is smaller than the actual foot size: the heel has to fall out one centimeter from the back of the sole. To the contrary the risk is to stumble into the bottom of the kimono or walk with difficulty the toes extend beyond the front edge of the sandals.
The Law for the Protection of Cultural Properties
With the II World War destroying many important historical Japanese sites, a new legislation became necessary which had to take into consideration the protection of arts, crafts and intangible properties. Therefore, cultural properties, known in Japan as “bunka-zai”, were recognized protection in 1950 through the Law for the Protection of Cultural Properties (hereinafter referred to as “The Law”). The need for it also resulted from the consistent Westernization of the Country and it has been implemented over the years to rule several traditional aspects.
The Law covers tangible cultural properties (i.e. arts and crafts), intangible cultural properties (i.e. the traditional methods and techniques that give birth to tangible cultural properties), intangible folk-cultural properties which are the traditional Japanese customs like every-day life practices, ceremonies, folk performing arts and so on so forth.
People and groups which are recognized as qualified to preserve and hand down to generations the intangible cultural properties are officially identified as Living National Treasures and the Government subsidizes them in order to foster training programs for the successors and the preservation of cultural properties.
The Law implements a specific designation and selection process.
A number of experts in the field of tangible, intangible and folk cultural properties are assigned to the Cultural Properties Department for the recognition of the cultural properties in need of protection and for the designation of Tradition custodians, individuals or collective. This selection is revised by a panel of experts within the Council for Cultural Affairs.
The main difference between intangible cultural properties and folk intangible cultural properties is that for the latter ones the Law just refers to the method for their selection and it does not provide criteria for the recognition of folk-intangible properties’ holders. The explanation is that folk expressions need to take place in their own venue and through a close connection with the environment and the social life, therefore the successor of this kind of expression will be automatically replaced by the community and a formal designation would deplete the intangible property of its folk feature – the designation by the community being essential.
Apart from the designation of the valuable cultural properties and the recognition of individuals and organizations which are considered custodians of the cultural property and responsible for their preservation, the safeguarding measures include: governmental funding, research in the relevant sectors to produce documentary materials and training programs for the dissemination of Japanese cultural heritage, the establishment of workshops for the general public.
Considering that the main part of Japanese traditional arts and crafts are made of materials which are in constant need of repair and restoration, the Law provides acknowledgment and protection of the traditional skills of qualified craftsmen for the conservation of cultural properties and the traditional techniques for the construction and maintenance of the tools needed for production and preservation of properties. Such techniques are considered intangible cultural properties. Subsidies and research programs are set up to train successors to master these conservation techniques.
Finally, the Government is committed to guarantee the raw materials needed for the production of traditional arts and crafts and for the production and repairing of tools.
Kim Kardashian West and her attempt to trademark the Kimono
Japanese Cultural Intellectual Property was recently in the spotlight when Kim Kardashian West announced on June 25 2019 the launch of her new line of shapewear named Kimono Solutionwear.
Both the general public and Japanese institutions reacted with concern: the influencer’s social media pages were full of comments asserting the cultural appropriation of Japanese traditional heritage accompanied by the hashtag #KimOhNO.
The Japanese Minister of Economy, Trade and Industry, Hiroshige Sekō, affirmed in an official statement that the Kimono is a Japan cultural expression, recognized as such both within the Country and globally, while the Mayor of Kyoto, Daisaku Kadokawa, sent a letter to Mrs. Kardashian West asking her to reconsider her choice of brand name. While he politely avoided to mention the term “cultural appropriation” he underlined that the Kimono is the result of craftsmen expertise and studies and it symbolizes the tradition and values of Japanese culture, as such the name cannot be monopolized: “Kimono is a traditional ethnic dress fostered in our rich nature and history with our predecessors’ tireless endeavors and studies, and it is a culture that has been cherished and passed down with care in our living… We think that the names for “Kimono” are the asset shared with all humanity who love Kimono and its culture, therefore, they should not be monopolized.” He also affirmed that Japan is trying to register “Kimono Culture” within UNESCO’s Intangible Cultural Heritage list and concluded his letter with an invitation of the West spouses to visit Japan and discover its fascinating culture.
After due consideration of the consequences of her choice Kim Kardashian West proceeded to changing the name of her shape-wear line. On August 26th she announced on Twitter that the lingerie collection will be launched on September 10th with a different name: SKIMS Solutionwear.
Things are slowly changing in the fashion industry. The Kardashian case proves once more that apart from legal rules, protection and respect of cultural properties derives from consumers’ awareness, sensitivity and ethical behavior.
Denominations of traditional textile goods such as the Kimono cannot be appropriated through intellectual property tools like the trademark. A trademark, by definition, is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies the source of products or services to distinguish one producer/source from another. The contemporary trademark as an IP tool is incompatible with the protection of traditional cultural expressions and detrimental to the protection and promotion of tangible and intangible cultural heritage. As a solution to such paradoxical cases and in an attempt to offer traditional communities and states a tool to indicate the source of their cultural heritage, The Cultural Intellectual Property Rights Initiative proposes the Cultural Trademark as a cultural intellectual property tool to indicate the cultural affiliation of tangible and intangible traditional cultural expressions.
The Cultural Trademark is a mechanism that certifies an authorized commercialization and/or the source of cultural products, traditional cultural expressions and expressions of folklore of a community, tribe or group - https://www.culturalintellectualproperty.com/mission.
 Law for the Protection of Cultural Property: https://en.unesco.org/sites/default/files/japan_law_protectionproperty_entno.pdf
 Articles 35, 74, 77, 87 and 182 of the Law.
 Articles 74, 77 and 150 of the Law.
 As established by articles 147 to 152 of the Law.
 Article in the Japan Times: “Kyoto mayor asks Kim Kardashian West to reconsider choice of 'kimono' for underwear brand”, accessible at: https://www.japantimes.co.jp/news/2019/07/01/national/kyoto-mayor-asks-kardashian-west-reconsider-choice-kimono-underwear-brand/;
 Picture of the letter sent by the Mayor of Kyoto, Daisaku Kadokawa to Kim Kardashian West, accessible at: https://qz.com/quartzy/1656086/japanese-mayor-writes-to-kkw-about-her-kimono-shapewear-brand/;
 Kim Kardashian West Changes "Kimono" Solutionwear Name to "SKIMS" (UPDATE), Article available at: https://hypebeast.com/2019/8/kim-kardashian-west-kimono-name-change-trademark-criticism;
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Ø Layla Ilchi, Kim Kardashian Reveals New Name for Shapewear Brand After Backlash - Kardashian was criticized for cultural appropriation over the initial name of her shapewear brand, Kimono, FASHION, https://wwd.com/fashion-news/fashion-scoops/kim-kardashian-kimono-brand-rename-backlash-1203208936/, accessed on 30 August 2019;
Ø MEHERA BONNER, Kim Kardashian Finally Changed Her Solutionwear Name, So It's Not “Kimono” Anymore - No more “Kim, oh NO!”, https://www.cosmopolitan.com/entertainment/a28197739/kim-kardashian-kimono-trademark-backlash/, accessed on 30 August 2019.