With the rise of fast fashion, social media and online shopping, fashion designers face issues trying to protect their work from copycats. It can be daunting to take on infringers of any size, but particularly difficult when it comes to large companies with questionable morals and a need to mass-produce popular clothes at speed.
It’s therefore crucial to understand your intellectual property rights and how to use them.
How to protect clothing designs
In the fashion world, copyright protects graphic designs, artistic works, literary works and works of artistic craftsmanship. This means that protection can generally be afforded to fabrics, surface patterns, and any graphic elements shown on a garment, whether it’s a shape, badge or wording.
Copyright arises automatically, without registration, and vests in the creator of the copyrighted work. As long as your work is original and unique, then it will be protected by copyright and you can enforce it against third parties. Copyright also lasts up to 70 years from the death of the creator.
Registered design rights
A registered design right can protect the appearance of the whole or part of a product. The scope of a registered design includes protection for three-dimensional shapes and two-dimensional design features, such as colour, surface decoration and texture
Importantly, registered designs need to be ‘new’, i.e. not disclosed to the public. However, there is a 12-month grace period, so any designs that are new or have only been on your website/social media/market for the last year can still be registered. It’s therefore important to start considering registered designs during the design stage and before you get them out there.
Due to the requirement for designs to be ‘new’, registering the shape of a garment is much more difficult, because clothing tends to follow similar, if not identical, shapes. For example, the shape of a t-shirt. Therefore, the three-dimensional shape of most items of clothing can’t be protected unless there is a combination of intricate elements or unusual features.
Registered designs work great for surface patterns or prints, and getting a registration should be relatively straightforward.
Unregistered design rights
Alternatively, unregistered design rights also exist in the UK and can offer protection to items of clothing that are not protected by registered designs. As with registered design rights, they protect the whole or part of the shape of a product. However, they cannot be used to protect surface decoration.
Unregistered design right is therefore a good fallback if you have a garment with a combination of intricate features, materials or is an unusual shape, and you haven’t been able to register it as a registered design (possibly because it has been disclosed to the public for over 12 months).