Here’s some useful information on protecting your designs. Copying is rife in the fashion industry but a designer does have some protection from plagiarism.
Copyright protects the expression of creativity by the author, not ideas. So you cannot protect an idea for a dress, but once it is drawn or painted, it is the drawing or painting of the dress, as an expression of that idea, which is protected, not a garment. These are often protected by design rights. Copyright arises automatically once a work is created. There is no need for registration. The main provisions for the protection of copyright are contained within the Copyright, Designs ands Patents Act 1988 (CDPA 1988).
A design can be protected under s4 of CDPA 1988 as an artistic work; specifically as a graphic work which includes a painting or a drawing. Textile designs may benefit from copyright protection but an actual coat or dress (when made) does not.
The author is the person who creates the work, i.e you! If you have collaborated with another designer in creating the design, the work may be a work of joint authorship with both designers sharing in the rights. The author is the first owner of copyright under s11(1) CDPA 1988. There are, however, exceptions. These are:
Works made by employees in the course of employment.
In the absence of an agreement to the contrary, where an artistic work is made in the course of the employment, the employer is the first owner of any copyright in the work A copyright owner has the exclusive right to:
Copy the work
Issue copies of the work to the public
Authorise others to carry out any of these activities (ie licences).
If a design is industrially exploited (which will usually be the case for textiles and fashion designs), the protection is reduced to 25 years from when the work is first exploited.
You don’t need to formally register your design to acquire copyright or EC design protection. But keeping a good record of what you have designed is critical. So put a copyright notice on each design: © + year of creation + your name + contact details.
Design rights can be relevant for fashion design. This is a complex area with several possible legal rights. However, the most relevant for a designer would be the EU Unregistered Community Design. This gives a very broad range of protection and can cover: Your design can be protected as an unregistered Community Design for three years. You do not need to register your design or fulfill any other formal requirements. If you decide to register the design, you can choose whether to make a single registration for the entire EU or merely for the UK. A registered design provides protection for 25 years. There is generally no need to worry about registration due to the fast moving nature of fashion. Even if you chose to register your design, you can delay doing so for 12 months from first marketing the design. This means you can wait and see if the design is likely to become a hit before incurring the registration fees.
In addition to the Community rights just described, there is a further UK right called the UK unregistered design right. This protects any aspect of shape or configuration of a design, though not surface decoration. This right can last for up to 10 years from when an article was first made to the design. This right arises from s213 of the CDPA 1988. There is overlap between these various rights. For example, a handbag may be protected as a Community Design and under the UK unregistered design right. © 2009 John/Jane Smith (address and telephone number). • costume design • urban design • product design • packaging design • industrial design ‘the appearance of the whole or part of a product resulting from the feature of, in particular, the lines, contour, colours, shape, texture and/or materials of the product itself and/or its ornamentation’. EU Designs Directive, Art 1(a), RDA s1(2) 4
A trade mark is a sign which distinguishes your goods from those of your competitors. Chanel, Louis Vuitton, and Gap are examples of well-known trade marks. Trade marks are important because they are the attractive force that pulls in your customers. Generally, your name or the name of your fashion label may function as a trade mark. Distinctive shapes can also be trade marks. For example the Burberry check and the classic Louis Vuitton print are registered trade marks. However, any sign that is customary in the trade is unlikely to be registrable as a trade mark. This applies to standard shapes (eg, the shape of a shoe), words used to describe your goods (eg the word ‘coat’ for outerwear) or shapes that result exclusively from the nature of the goods themselves (eg the shape of a dress). If there is a word, phrase, or design that you use repeatedly a trade mark registration may be something you should consider. Trade marks can be registered just for the UK (at the Intellectual Property Office (IPO)) or throughout the EU (at the Office for Harmonization of the Internal Market (OHIM) in Alicante, Spain). Once registered, protection for your trade mark may last indefinitely as long as you continuing renewing your registration every 10 years. When registering a trade mark it is generally advisable to instruct a trade mark attorney to ensure that all of the requirements of registration are met. Once registered, a trade mark registration generally allows you to stop the use and distributing of goods bearing your trade mark. For example, Louis Vuitton can stop the selling and importing of counterfeit Louis Vuitton bags bearing its registered trade mark design. A registered trade mark can be a very powerful tool.
If your business has a reputation (goodwill) in the UK, and another trader misrepresents its goods to be yours, you may have a claim based on ‘passing off’. Passing off operates in a similar manner as a trade mark claim without the need for a registration, but it can prove difficult and expensive to prove that your name has a reputation A registered trade mark avoids some of these steps and associated costs.
You should keep a photographic or photocopy catalogue of your designs, detailing when they were created, so that the date of creation can be proved if there is some future dispute. If you are employed as a designer and create the design in the course of your job, the copyright and/or design right will belong to your employer, not to you. If you are commissioned to create a design the position is more complicated. You should agree with the person commissioning who is to own the copyright and/or design right. If you are asked to send designs to a prospective client include a standard statement of ownership.
When a manufacturer wishes to use your work you should enter into a contract with one another. You may either LICENCE or ASSIGN your rights. An ASSIGNMENT is more usual since this is an outright transfer of your copyright and the customer will then have full, exclusive, control. A LICENCE is for specific purposes which you and your customer will agree. For example, you allow use of your design for one season or for one market sector. During the period you have licensed your design you remain the copyright owner. Usually an outright fee is paid to you; more rarely a royalty based on sales can be negotiated. You should require your full fee to be paid upfront. Signatures: It is advisable that the invoice detailing the charges and currency is signed by both parties. Usually this is worldwide although you can try and negotiate for a more limited area, eg UK or USA only. ‘This design is protected by copyright © and/or design rights. It is provided to you “in confidence” and you are not at liberty to disclose the design to a third party. Any infringement of the designer’s copyright and/or design rights will be pursued.’ Generally ESSENTIAL INFORMATION Fees Signatures Geographic Area.