The only requirement for copyright protection of fashion designs in the EU is their originality

In 2013 in Portugal G-Star Raw brought a copyright infringement claim against a clothing company called Cofemel in relation to their signature designs of jeans, t-shirts and sweatshirts. G-Star Raw stated that their fashion designs were protected by copyright as they were the designer’s own intellectual creations (which is the harmonised standard of originality requirement in the EU). The case was subsequently referred to the CJEU to determine whether Member States should be free to require a higher degree of originality for copyright in fashion designs which goes above that required for other categories of copyright protected works.

On 12 September 2019, the CJEU ruled that the only requirement for copyright protection to be granted to fashion designs is their originality, and the Member States can’t require designs to have artistic value to be protected by copyright. However, a design driven purely by technical considerations and not involving ‘the exercise of creative freedom’ will not attract copyright protection.

Briffa comments:

This is great news for designers launching their fashion collections in European countries that grant copyright protection to designs.

However, the design protection under the UK law is somewhat different from the rest of Europe. In the UK there is a closed list of works that are protected by copyright – and fashion designs per se are not on the list. The closest copyright protected category of works to designs are the ‘artistic works’, however, the English courts have been reluctant to grant copyright protection to garments themselves.

Therefore, in the UK design rights and trade mark rights are all the more important, and in practice fashion designers rely on a combination of copyright, trade marks, passing off, unregistered and registered design rights.

Briffa lawyers have a detailed understanding and experience of the way in which best to protect all aspects of your designs and can use this knowledge to enhance your design business.

If you would like to discuss how best to obtain protection for your design business please do not hesitate to get in touch with us on info@briffa.com or 020 72886003 and one of our specialist IP lawyers will be happy to have a preliminary consultation with you without charge.

Written by Anastasia Troshkova, Solicitor