Copyright and designs in fashion
How does intellectual property work in the fashion industry? An IP expert from Chanel talks us through.
Successful fashion design is about more than creating a quality product. It’s also about fashion entrepreneurship, building brand identity and, of course, the ability to generate profit.
Building and protecting intellectual property enables designers to exploit their creations, prevent unauthorised copies and to therefore protect revenue streams.
But what exactly can you protect in fashion? As well as the obvious brand names and logos which can be registered as trade marks, you might also find yourself in the areas of copyright and designs.
Both are very useful tools in the arsenal of fashion brands when tackling unauthorised copies of their products although relying on them is not without its challenges.
Design law can be absolutely key in preventing copying, offering valuable protection to the fashion industry.
Even better, protection is potentially available without registration as some forms of design protection arise automatically.
This is perfect for the fashion industry because collections come and go, and generally have a short shelf life which means it’s simply not practical or affordable to register everything.
Many fashion companies will only register designs which they expect to have longevity and/or those they expect to be copied.
Of course, this can be difficult to predict and waiting to see if a particular item is popular before registering could leave a designer without any protection at all.
For a valid design to be registerable (and enforceable), it must be new. That means that showing an item before you register it can make it impossible to register design protection.
In the UK we are fortunate that we have a grace period, giving designers a year to register their designs from first disclosure.
This gives designers a period in which they can test their products to decide if registration is worth it, but it often isn’t long enough to know if it has real longevity.
It’s also important to remember that the grace period isn’t available everywhere in the world.
Australia will be introducing a grace period in March 2022, but prior to this any disclosure at all (anywhere in the world) will destroy a brand’s chance to register their designs.
There are also some key differences between the rights given by registered designs and those which arise automatically, particularly around the types of protection available and the length of time they are available for.
For example, designers relying solely on unregistered rights can only rely on unregistered rights in surface decoration (so the pattern or print of a fabric) for 3 years.
However, if they had registered, they could claim protection for up to 25 years.
Finally, both registered and unregistered designs could be used to protect articles of clothing, jewellery and handbags, but only registered designs can be used to protect graphic symbols and store designs.
Although copyright is probably one of the best known intellectual property rights, historically, it has not been the most helpful to the fashion industry.
This is because clothing and other works of fashion do not neatly fall into any of the listed sub categories of “artistic works” (namely graphic works, photographs, sculptures or collages, works of architecture or works of artistic craftsmanship).
For fashion, the most relevant category is the “work of artistic craftmanship”. To fall within this category, a work has to be both artistic and be a work of craftmanship.
Demonstrating this can be difficult, although showing craftsmanship is generally easier, especially when referring to one off pieces.
However, a series of recent decisions from the European and UK courts are altering the landscape of copyright protection and it may soon be easier than ever to claim copyright in fashion items.
Identifying and protecting your intellectual property allows your work to remain distinctive.
Speak to a Chartered Trade Mark Attorney to get advice on ensuring that your brand is recognisable and unique, and to learn more about what trade marks could offer you.
Intellectual Property Counsel, Chanel Limited