31 January, 2017
In the fashion business, the copying of designs is so common that it appears to be almost accepted and normal, and when everybody is working with the same colour and style ideas, accidental similarities can easily look like copying.
From the moment celebrities are spotted wearing the latest fashion on the catwalk, designers across the world begin creating variations which eventually filter down to the high street. However, in order to avoid being sued for copyright infringement, your design must be substantially different from others.
Copyright is created automatically when a designer, as a creator of artistic work, creates a new design. To qualify, the design should be regarded as original and exhibit a degree of skill. Interpretation is related to the creation of the design itself (e.g. the garment or handbag) rather than the idea behind the design. Therefore, another designer is permitted to design their own garment or handbag, with the same idea, provided they do not directly copy or adapt yours.
Clothing designs often contain elements that are unique, and by reconstructing designs which copy these unique elements, a designer is more likely to be seen as infringing the copyright of others. However, what makes designs unique?
Colours are not generally considered unique or substantial enough to be covered, but if there are also some other close similarities combined with the colour, it can be an issue. Another point of similarity between designs is the texture and type of fabric - altering other surface details like buttons and trims can help protect you in this regard. The way the garment looks when being worn is the most likely factor to be the basis of a legal challenge - your garment will need to look different to another when worn.
The fast-moving nature of the fashion and retail sector has meant that legal actions against infringers has not been as popular as other creative industries. Retailers are ever changing their designs to keep the consumer's attention, and by the time a legal infringement action is brought, the design in question may have left the high street.
However, as counterfeit goods are becoming all too common, not just in the UK but internationally, and because it is easier, quicker and cheaper than ever to produce counterfeit goods, many designers and fashion brands are now seeing intellectual property as being important to protecting their bottom line and reputation.
New styles that are created as part of a company identity (e.g. the Burberrry check) will obviously have a longer lifespan and should be protected and enforced proactively.
Design rights protect the shape and configuration of the whole or part of an object and seek to prevent others from copying that appearance.
Certain designs are protected automatically under unregistered design rights when a new design is created. Unregistered rights seek only to prevent direct copying, so a rights-holder must be able to prove intent on the part of the other in order to succeed in an action for infringement.
In order to prove that a particular design is your creation which has been developed independently, and that you therefore own the copyright in it, a designer must ensure the date and ownership of the design can be established should this ever become necessary. This is often done by sending a photograph of the design to yourself by email. Relying on unregistered rights can be difficult to prove or enforce and whilst these rights are valuable they are therefore not always the most effective.
A registered design right protects any aspect of your design. It is a more certain and arguable right, giving you exclusive rights in the design, and preventing others from using it (even unintentionally) for up to 25 years; it is a clear legal redress in the case of infringement. Given that the cost of a design registration is relatively low, it's worth protecting key innovations regularly, even if they have a limited lifespan
Our IP solicitors can help designers and fashion companies protect their innovation and creativity. If you require assistance in identifying the intellectual property in your business, or would like advice on protecting or exploiting any of your intellectual property, please do not hesitate to contact either Ismaeel Waseem or John Pickervance">John Pickervance by email or on 0800 689 0831.
Learn more about our Commercial department here