Fashion can be a cut throat business. There are thousands of designers all competing for a share in the lucrative fashion retail market and the difference between a bad year and an amazing year can be delivered by one range or even one garment.
For this reason, whilst most fashion houses produce original collections and employ designers to create on their behalf, there are other houses that seek to copy successful designs and sell them at a lesser price, thus “piggy backing” on the cost and investment used by the more proprietary fashion houses.
This is obviously unfair and for that reason, the law in the UK will – to the extent it can – try and protect the design rights of the creator of an original work.
What are “Design Rights”?
There are in fact 4 different types of “Design Rights”
- UK unregistered;
- European unregistered;
- UK registered; and
- European registered designs
For fashion businesses, the most relevant right is the European unregistered design right which arises automatically to protect the appearance of whole or part of product resulting from features including: lines, contours, colours, shape, texture, materials of product or ornamentation.
This means that European unregistered design can protect two dimensional prints and three-dimensional designs for a garment, shoe or handbag. European unregistered design right lasts for three years and gives the owner the right to prevent others from copying his design.
Thus, if someone seeks to copy your design, and you can show that your design was novel and had “individual character” at the date it was first marketed within the European Union, then provided that the copy gives the same overall impression on the informed user as your design, you will be able to stop the third party copy from being sold and recover damages or an account of profits, known also as “infringing” your rights. “.
What do I have to do to protect my “Design Rights”?
As stated above, if you create an original design, the law protects your rights in that design automatically. Thus you do not have to apply to register your design for it to be protected.
However, we recommend that you record the evolution of your particular design or designs by, for instance, keeping a copy of your original sketches, keeping copies of correspondence with your staff or advisers confirming the dates on which your design was created and developed and recording when products were first made available to the public or, featured in magazines or a fashion show.
Where you work by yourself, other options could be to email details to your solicitor or even self post a copy of your plans or designs to yourself to enable you to provide evidence of the date of creation.
Again, your solicitors should be able to give you best practice guidance on all of these matters.
What do I do if someone copies my design?
If you believe that someone has copied your original design right and applied it to a product without your permission, you will need to seek advice from your solicitor who can assess whether your design is sufficiently original to be afforded protection, and what you would need to do in order to bring a claim.
Typically all claims start by your solicitor writing a letter demanding that the alleged infringing garment be removed from sale, and asking for information about the number sold, and volume of stock remaining. If the letter does not result in a settlement, you may need to commence legal proceeding for infringement of your unregistered European design right, in which you would seek an injunction damages or an account of profits, as well as recovery of your legal costs.
Legal advice should be sought quickly if you believe you have been the victim of an unauthorised infringement or, alternatively, if someone levels such an allegation against you.