Imitation is the sincerest form of flattery! Isn’t it?

Imitation

noun

“a copy or reproduction of a genuine article; counterfeit”

Flattery

noun

“excessive and insincere praise, given especially to further one’s own interests”

Imitation goods cost the fashion industry billions each year, diluting and damaging the reputation of even the most well-known brands whilst lining the pockets of the counterfeiters. You can however defend your company against the fakes by protecting, policing and enforcing your Intellectual Property.

In the EU design right is generated automatically upon the creation of a design, for example a garment. There are of course requirements which must be met to own an unregistered design right, one cannot simply acquire rights in a simple pencil skirt we have all seen before. If you believe you have created a new design, which is markedly different to others out there, seek advice, as you could be protected for 3 years from creation against copycats. Relying on unregistered rights is tricky however, as you must prove that you own them through evidence, which is costly and time consuming. It’s therefore advisable to protect your key designs by registration.

Perhaps the most important thing to remember when considering registering a design, is keep it under your hat, so to speak! Once you publicly tell someone about your design, you have disclosed it and you cannot then register it in many countries around the world. In a few countries, such as the UK, there is a grace period, which means you can register your design after disclosure provided you do this within one year. Ultimately however, keep quiet and operate under non-disclosure agreements where necessary before registering your design.

You might ask why you would register your design if you get 3 years unregistered design rights in the EU for free. In some cases, there may be no reason. There is no “one-size-fits-all” solution here. You need to align your Intellectual Property strategy with your business plans to get the right protection for you. Registered rights are however, generally speaking, easier and cheaper to exploit and enforce than unregistered rights, and you can enforce them not only against identical copies but against designs which create the same overall impression. Registered EU designs are also fairly simple and relatively cost effective to acquire and can last much longer than unregistered rights, i.e. up to 25 years, so long as they are renewed every 5 years, so there are clear benefits to registration. Furthermore, provided you have not disclosed your design, you might also be able to register it in China, India and other markets of great importance to both the manufacture and retail of your goods where copying can be rife.

It is a misconception that designs are the only or even the most important rights to a fashion business. Consumers make repeat purchases not only because they love the product design but also because they trust the brand, because it tells them, for example, that a dress is cut well, a handbag is of a certain quality or those shoes will act as a status symbol. Consequently, Trade Marks can often be the strongest rights, especially when it comes to long term protection, as they can last forever.

In the UK, you can acquire unregistered trade mark rights through the use of your brand name or logo. These rights can then be used to prevent a third party from subsequently using or registering an identical or similar sign in relation to their business if consumers would be deceived into thinking the two businesses were connected, such that your earlier business would be damaged. This is a very strong right in the UK; however, like unregistered design right, you need to show that you own unregistered trade mark rights with evidence. The evidential burden is very high and your time and money could definitely be better focussed elsewhere, especially in a fledgling business. It is therefore advisable to register your brand names and sub-brands (e.g. diffusion lines), logos, distinctive shapes, patterns and embellishments (e.g. a distinctive colour applied to the sole of a shoe!) as trade marks. Like designs, registering a trade mark in the UK and EU is relatively cost-effective and straight-forward, but unlike designs, trade marks offer you eternal protection provided you renew them every 10 years and make genuine use of them.

Other IP rights are also available for your exploitation and protection, for example, copyright, which is generated automatically when you create garment patterns, website content or business materials, for example; and patents, which must be registered and, although less likely to apply to the fashion industry, should be considered if, for example, you have been innovative in the way you manufacture or have made a new material or improved an old one.

Numerous options are available! And many of you already own valuable Intellectual Property of which you might not even be aware.