Written by Katie Moruzzi | March 9, 2022
With the rise of fast fashion, social media and online shopping, more than ever, fashion designers are facing issues trying to protect their work from copycats. It can be daunting trying 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.
For example, there’s copyright. New clients frequently ask us how to copyright their clothing designs. But, the thing is, copyright is only one of the intellectual property rights that clothing designers need to think about when considering the protection of their designs. Design rights, trade marks, and patents also play an important role in intellectual property for the fashion industry.
In this guide, we’ll explain the various intellectual property rights for clothing designs, and then we’ll cover the steps you can take to protect your designs from copying and theft.
Yes, you can have copyright protection for 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 that are shown on a garment, whether it’s a shape, badge or wording.
There are, of course, nuances to copyright law in regard to clothing, so it’s worth speaking to a legal expert.
There is no need for a designer to manually register or apply for copyright on their clothing designs. Copyright arises automatically from the moment of creation, so your clothing designs are protected by copyright law as soon as you create them.
This is one of the biggest practical advantages of copyright – you don’t have to do anything to get it. That’s unlike trade marks or design rights, where you have to make an application to an intellectual property office and pay registration and renewal fees. So, as long as your work is original and unique then it will be protected by copyright and you can enforce it against third parties for up to 70 years from the death of the creator.
However, it is crucial to keep evidence of your creation of the work. We recommend that you:
An obstacle that frequently arises in copyright infringement cases is that the copyright owner can’t prove ownership with sufficient precision. For example, the original draft of a work cannot be located and the infringer takes advantage of the information gap and claims that their infringing work was created earlier. By documenting your creation process, you give yourself the best possible chance of successfully fighting any infringements.
Clothing designs could also be protected by both registered and unregistered 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. Therefore, it’s 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 a lot 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.
Nonetheless, registered designs work great for surface patterns or prints and getting a registration should be relatively straightforward.
Alternatively, unregistered design rights also exist in the UK. These rights 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.
As such, unregistered design rights are a good fallback 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). While unregistered designs can be useful, if you do have new designs that you think can be registered then we definitely recommend taking this step.
Trade marks are another intellectual property right to consider for your clothing designs. Although trade marks cannot protect your actual designs, they can protect any branding you intend to use. For example, the name of your clothing line can be protected by registering a trade mark.
Owning a trade mark gives you the exclusive right to use your brand for your clothing designs. It stops anyone else trying to copy or emulate your branding. Plus, registered trade marks are one of the strongest intellectual property rights, because if renewal fees are paid and the mark is continuously used, the rights can last indefinitely.
Patents are registered rights that protect inventions. You can file a patent for many types of new, technical inventions. The criteria for obtaining a patent in the UK are that the invention must be new, incorporate an inventive step, be capable of industrial application, and not fall into one of the excluded categories. In relation to the fashion industry, patents could be relevant if you’re designing clothing with fabrics that have innovative technical properties, such as waterproof fabric.
Clearly, this doesn’t apply to most clothing designers, but it is worth considering and keeping in mind as your fashion business grows.
Taking in everything we’ve explained above, you can protect your clothing designs by following these steps:
The above is not an exhaustive list of intellectual property rights that can be relevant to the fashion industry. Apart from just understanding the different types of rights that could apply to your designs, there are also a number of other considerations to take into account. For example, ensuring that you actually own all relevant rights.
Understandably, this can all seem overwhelming. However, we are here to help you navigate the intellectual property world, while you focus on creating your best clothing designs. If you need help, just fill in the contact form below or email us to book a free consultation meeting.
This post was written by Anastasia Troshkova and Katie Moruzzi.
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