Protecting intellectual property in the fashion industry

Here we look at some of the many issues related to protecting intellectual property in the fashion industry. Around London Fashion Week (“LFW”) from 16^th February 2024, the spotlight is on both well-established and emerging designers in the UK displaying their latest creations. 

LFW provides a platform for a diverse range of creators in the fashion industry to showcase their collections on a highly publicised, global stage.

Whilst exhibiting their designs, fashionistas will want to ensure that their creations and their brand identity are adequately protected. There are three categories of IP that will help them in this quest:

1. Copyright is an unregistered right which arises automatically when something original has been created by exercising skill, judgment and effort.

In the context of LFW, copyright will attach to sketches of runway collections and the surface decoration of the garments unveiled. Copyright will also protect advertising content, website pages and photographs. Copyright gives the creator, or owner, of a work the exclusive right to exploit it, and stops others from copying it.

The duration of copyright varies depending on the type of work, who created it and where it was created. Under UK law, written and artistic works are protected from date of creation until 70 years following the creator’s death.

2. Unregistered and registered design rights can also protect fashion creations.

Unregistered design rights arise automatically, and cover two different categories of design: (i) shape/configuration; and (ii) appearance.

The shape and configuration (how the parts are arranged) of 3D objects is automatically protected in the UK for whichever ends first of: (i) 10 years after the object was first sold; or (ii) 15 years after the object was created.

The appearance of a product is protected in the UK for three years from the date the design was made public. This is known as a ‘supplementary unregistered design right’. The appearance can be 2D or 3D and includes its shape, colours, texture, materials and ornamentation.

Registered design protection can be obtained for the visual form or appearance of an article and can include lines, contours, colours, shapes, textures, materials and ornamentation. To qualify, the design must create a “different overall impression” when compared with earlier designs in the same area. This can be challenging to demonstrate in the fashion community when particular trends are rife!

A design registration grants a monopoly right over the design in the territory covered by the registration, enabling the rights holder to prevent others from copying or using the design in that territory. A UK design registration lasts for 5 years but, if renewed, can last as long as 25 years.

3. Fashion houses protect their core names, logos and slogans through unregistered and registered trade marks, enabling consumers to distinguish their goods from those of others. Trade marks act as a badge of origin, reassuring consumers that the quality, ethos and origins of goods they purchase under a particular brand ought to match up to those experienced from the same brand in their previous purchases.

The most iconic fashion brands dedicate significant manpower and budget to securing and defending registered trade mark protection on a global scale. A trade mark registration lasts for 10 years. It must be renewed every 10 years for it to stay in force.

Even unregistered trade marks can be afforded a degree of protection under UK law if they are used by a third party without consent, and ‘goodwill’ has built up in them over time. It may be possible to take legal action against the third party through the law of ‘passing off’ if you can demonstrate that the third party has made a misrepresentation to the public which has led, or is likely to lead, the public to believe that the goods offered by the third party are your goods, and that there has been (or is likely to be) damage to you as a result.

If understood and harnessed strategically, unregistered and registered IP rights can offer invaluable protection to both established and emerging players in fashion industry. We’re here to help with your queries and conundrums around intellectual property in the fashion industry, whether they relate to protection or infringement. Please contact us at info@ignition.law.

Written by Ailsa Clelland and Hannah Jones.