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Designers and IP Protection: Fashion’s Front Line

Posted on Oct 25, 2012 by Dr. Julie Nixon  | 0 Comments

Ever intrepid in the name of fashion, this lucky blogger found herself at the Harvey Nichols ten year anniversary party the other night. While taking a moment to reflect on an available throne (can I have one installed in the office?) I found myself as always drawn back to IP. What options are there for designers established and new in protecting their designs and making the most of their IP?

Trade marks are important in fashion (see earlier blog on the Louboutin trade mark spat with YSL) and while copyright can protect a 2D work, when it comes to clothing and accessories, Design Right and Registered Design IP protection is your bag (sorry!)

A Design Right gives automatic protection for three dimensional designs and allows the designer a right to stop others copying their 3D design.  The protection for this lasts 10 years after the first marketing of the articles incorporating the design, or 15 years after the creation of the design, the earlier of the two dates being applicable.

However in practice it is more difficult to prove infringement of an unregistered Design Right as you must be able to prove it was copied, or that the potential for copying existed. If a competitor can show that it created its design independently, then it will not infringe an unregistered Design Right.

 The financial burden of court costs is onerous and understandably can put young designers off taking legal action.

Designers can choose to register a design if the design is new and has individual character-the appearance of the design or overall impression is different from the appearance of other already known designs. A Registered Design gives a designer exclusive right in a design, in the UK, for up to 25 years and is renewable every 5 years. Registration of the design can be delayed 12 months from first marketing the design, allowing a designer to see if their item is a “hit” before incurring registration fees. In practice designers register designs for particularly iconic, carry-over pieces that meet the requirement of novelty and distinctiveness. The existence a Registered Design may be enough to deter copying and can be recognized as a financial asset.  And a Registered Design is more easily enforced because it is presumed to be valid and there is no need to show copying in infringement cases.

In recent years established and emerging designers have used their IP rights by entering into collaborations with high street retailers, which has proven lucrative for many and accessed a market that would not normally buy high end designer but high street copies. Jasper Conran’s relationship with Debenhams has been ongoing, and Top Shop has found a particular niche with young designers such as Christopher Kane and Jonathan Saunders, creating lines with their signature styles. This is attractive to shoppers because they can have an actual designer piece at non-designer prices.

Of course there were no fakes to be seen at the Harvey Nichols party, just Edinburgh fashionistas in all their branded glory. Amongst the party goers were the aforementioned fabulous Christopher Kane and Jonathan Saunders. Gordon Drummond and his team put on an amazing party, the store was completely transformed into a Mad Hatters garden with dancing Knights (loved!) and a gothic twist. I am sure I am not the only one looking forward to the next ten years of happy shopping.

Julie Nixon

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