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Fashion and IP what rights do you have

Written by Michael Coyle on 14 December 2013

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A significant attraction to the fashion industry is the quick turnaround of designs. What is 'cool' one year is not cool a year later. Many fashion houses will have hundreds of pieces each year which will need to be protected but often this cannot be done as it would cost many tens of thousands in fees.

Trade Marks

The importance of choosing and protecting a brand's name is of course the most important aspect of any brand. The established famous brands, such as Nike, Abercrombie and Fitch, Ralph Lauren, Hugo Boss, Stella McCartney, Armani, Primark are all established trade marks. So a trade mark is the first thing you need to do. Protect the brand identity. If you don't do this then forget it, find something better to do!

Copyright

Its all about ideas, being first on the catwalk, creating new and exciting items from shoes, to handbags, hats, jewellery, dresses,waistcoats all start out as ideas.  To get from the drawing to the catwalk to the shops all demand a high level of inspiration, and creativity. Copyright does not protect an idea but how that idea is expressed. It does not give the rights holder a monopoly as a patent or registered design does.However once an idea is committed to paper or some other tangible form then how that idea was expressed is protectable as a piece of opyright and is an automatic right. So copyright is important in the fashion industry. Make sure the design is original and not a copy - they key is a degree of independent skill and labour.

Design right

Both registered and unregistered rights are crucial in the fashion industry. Establishing what right is required to suit your particular circumstances can be rather difficult. But to simply the process ( you must seek legal advice) read on.....and I recommend all fashionistas to be aware of the CDR

Community design right( CDR)

The industry can rely on copyright in respect of the drawings and provided we are not seeking to protect the surface decoration then copyright may apply to the artistic work. However most copies have simply seen the garment or hat on the catwalk so copyright does not afford protection as a) they may not be capable of copyright protection as a) the drawings have been copied b) the item in question relates to surface decoration. So thankfully along came the CDR.

 

The CDR (6/2002/EC) introduced two forms of Community-wide design protection:

  • Unregistered design right. Confers automatic protection for three years from the date on which the design is first made available to the public within the EU. It provides the holder with the exclusive right to use the design and prevent unauthorised deliberate copying. THIS IS PERFECT FOR THE FASHION INDUSTRY. The wide definition of design namely  "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/or its ornamentation" (Article 3(a)).

  • Registered design right. It provides the holder with the exclusive right to use the design and prevent unauthorised use. The maximum is not taken into account when deciding whether a design is new.

Here at Lawdit we intend to launch protectyourdesign.com in the NY so please watch this space!

MJC

 

If you'd like to know more about this article please send an email to Michael Coyle quoting the article title and any questions you might have, alternatively call the office number on 02380 235 979 or send an enquiry through our contact form.

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