Uncertainty about how the UK’s vote to leave the European Union will be realised makes it difficult to predict exactly how it will affect the fashion industry’s legal rights.
However, an important right for protecting fashion designs, the unregistered EU design right, comes directly from a European Directive. This is likely to be lost post-Brexit unless the government passes new UK legislation. This would not only create an imperative for the fashion industry to focus the government’s mind on this issue, but also presents an opportunity to lobby for protection that is tailored to the needs of the national industry.
Unregistered EU design right provides for three years of EU-wide protection for designs against copies. It is an important means of protecting seasonal fashion designs, which change too quickly to merit the cost or administration associated with applying for longer-term registered design protection.
It also provides protection for many aspects of a design, including the lines, colours, shape, texture and materials of a product or its surface decoration. This differs from the protection offered to unregistered designs under UK law, which is more targeted at functional designs (such as packaging designs), protecting only the ”shape and configuration”. This leaves out many of the features that give fashion designs their novelty and edge.
UK law relating to registered designs generally mirrors the EU directive. Therefore, the impact of Brexit may be more keenly felt in the fashion industry, as a result of its greater reliance on unregistered rights, than in the wider design community.
Much of the commentary on Brexit in intellectual property circles has focused on the likely impact on registered rights. Considering the importance of the unregistered design right to the fashion industry, the industry should ensure that this subject is not overlooked. More than that, the need for new legislation presents a chance for the industry to identify any aspects of the EU legislation, which might be improved in the national industry’s favour.
Possible areas for influence could include the duration of protection and the test for infringement, namely the extent to which a design must be copied to be infringed. In this regard, Brexit creates an opening for the fashion industry to influence the Government in ensuring that Britain remains an attractive setting for fashion’s creative talent.
Ruth Burstall is an intellectual property lawyer for Baker & McKenzie