AJPark

A recent case in the United Kingdom highlights how careful fashion designers have to be when creating designs.  A cute lemon yellow dungaree dress sparked the battle.

Fast fashion chain Topshop was forced to destroy hundreds of dresses and pay thousand of pounds.  Why?  Because leading designer Chloe accused them of copying its designs. 

This case is the latest in a string between fashion houses and fashion copycats.  Concerned about the erosion of their intellectual property (IP) rights, high-end fashion houses are fighting back.  New Zealand had a similar case some years ago involving Thornton Hall and Shanton.

At the core of every creative and design based business is IP. As a creative designer, one of your most important business assets is your IP. But you need to know how to recognise and protect your IP to make the most of the business opportunities and advantages it gives you. 

You also need to understand that other designers also have rights which you could infringe if you have based your business on an “affordable imitation” basis.   Fashion designers especially are becoming wise to the value of protecting their products and trade marks.

In a fashion based business, the main kinds of IP rights are:

Designs – a design protects the appearance of an article, such as its shape, configuration, pattern or ornamentation. A design registration lasts 15 years.  The LOUIS VUITTON pattern could have been registered as a design.

Trade marks – trade marks protect names, logos, signs, symbols, tastes, smells, slogans, colours and shapes that identify the goods or services of one business and distinguish them from competitors’ goods and services. Examples include the BURBERRY check, LEVIS STRAUSS tab, NIKE swoosh, KAREN WALKER to name a few. 

A trade mark registration is an enduring right; it can last forever. It does need to be renewed every ten years to remain in force.   

Copyright – copyright protects the particular way in which an idea is expressed. Copyright is a property right which automatically exists in some original works including literary works like articles, website content, promotional material and artistic works like logos, photographs and advertisements. Copyright also exists in drawings, and prototypes.

As a designer you create many “works” that would attract copyright. Copyright has different terms depending on the nature of the work but generally lasts for 50 years following the death of the author or 50 years from the end of the calendar year in which the work is created.
 
Fashion design businesses based around originality and creativity are especially vulnerable to copying so where it is possible to protect yourself, it is even more important to do so.

You may not want to seek registered design protection for every design you create but you should consider the possibility if you create an ‘out of the box’ design which you believe could revolutionise your industry.

Instead you may just want to rely on copyright protection for your designs.  Clearly, displaying a copyright notice used on all drawings, prototypes, and even on your swing tags and labels, gives notice to the public at large of your rights.  This can be a deterrent against would be copyists.  Also it clearly signals that you value your rights and that you want others to know that you are claiming copyright.  A copyright notice would read  '© Corinne Blumsky 2007'.

Make sure you carve out a niche for yourself by adopting visually striking and easily recognisable trade marks.  You could also take steps to protect your brand as a registered trade mark.  Fashion designers for example should seek registration for their main product lines such as clothing and headgear.  But there are also fashion accessories such as wallets, bags and umbrellas, sunglasses, watches and fragrances to cover.  And what about retail services?  Registration should be sought not just in New Zealand but also in those markets a designer intends to export to.

Seeking professional advice early in the creation of IP rights will help maximise the value it will add to your business.

In an industry where design is at the forefront, make sure that your creations are new and do not infringe the rights of others.  To be able to assert your original creation, keep original drawings and prototypes of your designs.  Make sure they are dated.   And don’t choose similar trade marks.

Use the legal rights available to designers to protect your business. Stand out from the crowd and use IP rights to your advantage.

An edited version of this article was published in Her Magazine November 2007

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  Corinne Blumsky

  Partner