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Talking Business: A new dawn for fashion design protection

The European Court of Justice’s decision to uphold Yves Saint Laurent’s registration of two of its handbag designs is only the most recent example of a growing trend.

In another case involving Animal, the court agreed with my argument that the brand had infringed Superdry’s design rights with a hooded gilet. Substantial damages were paid. In G-Star v Rhodi, the court held that G-Star’s design rights had been infringed by Rhodi.

Although the Superdry and Rhodi cases involved unregistered designs, registered European designs can last up to 25 years. The filing procedure is straightforward, registration only takes a few days and the costs involved are relatively low. There is a grace period of one year following first marketing within which the design must be filed to obtain protection. This allows a designer to wait to see if a product is successful before filing the design registration.  

In an age when an item shown on the catwalk can be copied in a matter of minutes, the ownership of a registered design for the whole or part of an item of clothing or fashion accessory can be a useful weapon against copying. So far so good. 

However, historically, it has often been slow and expensive to take action against copies through the English courts. But, the introduction of the Intellectual Property Enterprise Court two years ago has changed things for the better. The IPEC is specifically designed for SMEs and for cases that have a value of less than £500k: this covers many, if not all, of the fashion disputes that come across my desk. 

There is also a costs cap of £50k for legal fees and if both parties agree the IPEC will give a non-binding preliminary opinion, which can be very helpful in resolving a claim. 

So costs have come down and it is now far easier to first enforce designs through the English courts and then enforce English court judgments across the EU. More importantly, as recent court decisions have shown, the IPEC court is claimant friendly, with around 70% of design claims being successful.  

In short, design protection for fashion has never been easier.

Simon Bennett is a partner at fashion law group Fox Williams LLP

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