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Law firm warns of design right threat from Brexit

Changes in intellectual property rights after Brexit could undermine London Fashion Week and UK industry

London-based law firm Olswang has launched a campaign to raise awareness of the risks Brexit could pose to the design rights of fashion businesses in the UK.

Under existing law, when a UK company shows a 2D or 3D design first in the UK, it is automatically protected from copying anywhere in the European Union for three years under the unregistered community design right.

“Once Brexit is triggered and the UK leaves the European Union, that protection will be lost,” said Sarah Wright, head of trademarks at Olswang, explaining that UK-based designers would then be forced to launch legal action in each EU member state where a copycat product was being sold.

There is a UK design right, which gives a degree of protection from copying, but it excludes surface decoration.

“Even if the UK government widened the scope of the current design right protection to include surface decoration, post-Brexit it would only confer protection within the UK, leaving it open for anyone outside the UK to copy the design,” said Wright.

Wright warned that designers and fashion brands may seek to launch their products outside of the UK to qualify for the automatic EU-wide protection afforded by the community design right, which could undermine the status of London Fashion Week.

The UK government has asked the UK Intellectual Property Office (UKIPO) to consider what steps it should take to protect businesses.

Through its #designadvocates campaign, Olswang is calling on the industry to lobby government and UKIPO to pass UK legislation that creates automatic protection for all new 2D and 3D designs, including protection for surface decoration.

It also wants government to put in place a mutual recognition treaty with the EU, so UK courts will recognise and enforce community designs when they are proven to have been copied in the UK and EU courts will recognise and enforce British designs within the EU, ideally on a pan-European basis.



Readers' comments (1)

  • All is not lost, there is a separate UK unregistered design right in the UK that lasts longer than the EU right and this together with copyright protection, which protects surface ornamentation gives very similar protection. There are some exceptions to this following a case called Lambretta v Teddy Smith but things may not be as bad as they seem. Also, since we do not even know yet when Article 50 will be triggered it may be a bit premature to lament the passing of EU Unregistered Design Right just yet.

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