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I work in fashion: What do I need to know about IP?

Published 21.03.11 at 16:27

Designers of clothes and other fashion items, need to be aware of the following IP rights:

- design rights and copyright to protect the design and detail of your goods; and

- trade mark rights to protect your brand name and logo.

 Design Rights

Design rights protect the appearance of an object, such as an item of clothing. There are several different kinds of design rights, including UK and Community (EU), registered and unregistered design rights.

Do I need to register my designs?

Unregistered design rights arise automatically when a work is created, so there is no requirement to register your designs.  However, it is very important to keep good records of the whole design process as well as any meetings and correspondence in case you are ever required to prove the originality of your work.

Community Unregistered Design

The Community unregistered design right is most relevant to designers. It protects the “lines, contours, colours, shape and texture and/or materials of the product itself, and/or its ornamentation”.

Unregistered Community designs last for 3 years. This is often sufficient to protect designs in the fashion industry, if the item is a seasonal fashion piece. For designs which require longer protection, registration of a design is possible.

Registered UK and Community Designs

Registered designs last for 25 years.

An application to register a design must be made within 12 months of the first design first being marketed. Your design must be new and create a different impression to any other design which has already been made available to the public.

A filing fee will be incurred to register a design.

How do I stop someone else using my designs?

For unregistered designs you can prevent another people copying your design.

For registered designs, you can prevent someone using a design which creates the same overall impression as your design, whether or not they have copied your design.

In the first instance you may wish to write to them explaining that you think they are infringing your design right, failing which you may commence court proceedings against them

Copyright

Copyright protects various types of “artistic works”, such as images, sculptures, textiles, patterns, photographs and possibly the pieces of clothing themselves.  It protects the physical expression of an idea, rather than the idea itself which others are free to use. Importantly, the work must be original, i.e. not copied from an existing work.

How do I get copyright protection?

Copyright arises automatically so you don’t need to register it for a work to be protected.

The owner of copyright in a work is the creator of that work, unless it was created in the course of employment, in which case your employer will own the copyright. Joint ownership of copyright might arise if you collaborated with another and your contributions are not distinct.

How long does copyright protection last?

In general, if you make more than 50 copies of your work, as for commercially produced clothes, its copyright protection will last for 25 years.

However, if you only make a small number of copies of any particular design, protection will last for your lifetime plus 70 years.

How do I stop others from copying my work?

Copyright protection means you can prevent others from copying or reproducing your work (or a substantial part of it) without your permission.

In the first instance you may wish to write to them explaining that you think they are infringing your copyright, failing which you may commence court proceedings against them.

To help deter others from copying your work you could add a copyright notice to your work, e.g. “© John Smith 2011”, and ask potential business partners to sign confidentiality undertakings before showing them your work.

Protecting yourself from allegations of infringement

As for design rights, it is important to keep good records of your creative process, as independent creation of the same or a similar work does not infringe another’s copyright.

Trade Marks

Trade marks are used as a sign of the origin of goods to distinguish your goods from the goods of others.

Trade marks must be registered to prevent other people applying your trade mark to their goods. The registration process involves a comparison of your proposed trade mark against the other trade marks which have already registered, to check whether that mark is available for you to register for your specific goods.

How do I register a trade mark?

Applications to register a trade mark can be made to either:

-       the UK Intellectual Property Office (IPO) for a trade mark in the UK; or

-       the Office for Harmonisation of the Internal Marked (OHIM) for a Community Trade Mark which will give protection throughout Europe.

The IPO and OHIM charge a fee per application, which will depend on the number of classes of goods for which you register your trade mark. Some examples of the classes of goods which you may want to register your mark for are: textiles, clothing, jewellery etc.

A Trade Mark Agent will be able to help you register a trade mark for the correct classes of goods you require.

What can be registered?

-       your company or brand, e.g. Tommy Hilfiger or French Connection;

-       the way the company name is written, e.g. the stylised Coca Cola sign;

-       logos, e.g. the Nike swish.

What cannot be registered?

-       marks which are identical to an existing trade mark

-       marks which are so similar to an existing trade mark as to be confusing.

-       marks which are considered too descriptive, e.g. ‘jeans’

-       marks which are commonly used in the trade.

What are the benefits of registering a trade mark?

Trade mark protection can last indefinitely if the renewal fees are paid (although registrations can be challenged if the mark is not used for a period of 5 years or more in relation to any of the goods or services for which it is registered).

Owning a registered trade mark means you can stop anyone else using that brand name, company name or logo on their own products, if those products are within the same or a similar class of goods to the classes for which you have registered your trade mark.

Exploiting your IP Rights  

You can assign (transfer ownership) or license (grant permission to use whilst retaining ownership) your registered or unregistered IP rights to allow other people to use them, in return for payment or some other form of consideration. Further to licensing, please listen to our podcast 'Building a fashion brand: an insider's guide to licensing'

Please also read our 'IP Guide to... Fashion'.

Content supplied on behalf of Own-it by College of Law students at the Moorgate Centre supervised by a lecturer at the College of Law's Moorgate Centre.

Photography by Danagraves (some rights reserved)


Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.

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