Design Rights in Articles of Clothing

Clothing designs can be protected by both registered and unregistered design rights (as well as copyright).  A registered design right can protect the appearance of the whole or part of a product including protection for three-dimensional shapes and two-dimensional design features such as colour, surface decoration and texture.  To be capable of registration, a registered design need to be novel, meaning that no other design which does not perform a different overall impression to the new design is to have been disclosed to the public.   Importantly, if you have a new design you wish to protect, there is a 12-month grace period.  Essentially, meaning that any designs that are new or have only been on your website/social media/market for the last year can still be registered. Therefore, it’s important to start considering registered designs during the design stage and before you begin to market them.  Once the 12-month period from first marketing has expired, your design will no longer be new and capable of registration.

Registering the shape of a garment i.e a dress, or a shoe tends to be more difficult due to the design constraints in clothing tends to follow pre-existing designs, if not identical, shapes. For example, the shape of a t-shirt. Generally speaking, most items of clothing can’t be protected unless there is a combination of intricate elements or unusual features which has not been used previously.  However, this does not mean you cannot protect the surface patten of your design.

Alternatively, unregistered design rights also exist in the UK. These rights can offer a lesser protection to that of registered design rights.  Unregistered design rights protect the whole or part of the shape or configuration of a product. However, they cannot be used to protect surface decoration (you would rely on registered design rights or copyright).

As such, unregistered design rights are a good fallback position if you have a garment with a combination of intricate features and materials, or 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).