May 20, 2021
By: Peter Gregory
In the world of fashion, who owns a designer’s work? How should you protect that Intellectual Property, and what can you do if someone copies your design?
In this beginner’s guide to IP in fashion, we’ll answer some of the big questions asked by UK clothing startups. We’ll explain the three main ways you might be able to register and protect your original creative work, and show you where to look for further support.
Unlike other creative and manufacturing industries, the fashion industry isn’t protected by one specific purpose-built set of Intellectual Property laws. Instead, it’s partially covered by a few different systems.
In the UK, you can prove ownership of your clothing designs, and prevent others from copying your Intellectual Property, if you hold either Design Rights, Copyright or a Patent.
To qualify for these rights, your design needs to be truly unique and original. You should always try to register your Intellectual Property as soon as possible — you can’t always apply for protection retrospectively.
If you want to apply for IP protection, you need to choose whether to apply for Design Rights, Copyright or a Patent. Each of these legal frameworks exist to protect different types of creative work:
Design Rights protect the ‘3D’ piece itself. If you have designed and made a full costume or an innovative new style of garment, for instance, then you’ll probably want to apply for Design Rights. Design Rights come in two different forms:
Unregistered Design Right:
When you create a 3D object in the UK, you automatically get Unregistered Design protections for between 10 and 15 years. You don’t have to apply to a central Government department or pay a fee to get Unregistered Design Right, but you do need to be able to prove when you created your design. One way to do this is to send signed & dated copies of your design drawings to your solicitor. You can learn more about Unregistered Design Right here.
Registered Design Right:
You can register the look of your product with the Intellectual Property Office as long as it is a genuinely new design that belongs to you. Registered Design Rights last longer than Unregistered Design Rights (up to 25 years). It’s also much simpler to take legal action against copycats and counterfeiters when you hold Registered Design Rights. There are more than 4,000 British garment designs listed on the European Union IPO database (see here). If you want to register a design, you can do so online here.
If you want to learn more about how Registered Design Right works in practice ( … and what happens if you don’t apply for it), you should take a look at this case study from Nicole Phillips. This 4-minute video explains the value of IPO registration better than anything!
The ‘2D’ parts of your clothing design (vinyl graphics, embroidered details or woven badges, for instance) are covered by UK copyright law. When you create an original illustration or take a photograph here in the UK, you automatically get copyright protection. You don’t need to add the © symbol, apply to the Government or pay a fee.
Copyright Law in the UK is covered by the Copyright, Designs & Patents Act 1988. Copyright covers eight specific types of creative works, including TV shows, sound recordings and books. Clothing isn’t on the list of eight types of work, but ‘graphic work’ (the screen-printed design on a t-shirt, for instance), is covered.
Patent law exists to protect inventors, not designers, but it may still be appropriate, depending on what you have created. If, in the process of designing your clothing range, you created a completely unique, never-before-seen function, then you may be able to patent it as an invention.
The patent application process can take years, but if your invention is a groundbreaking ‘million pound idea’, then it may be worth the wait. You can learn more about the Patent application process, and start your own patent application, on the IPO website here.
Just bear in mind that the Intellectual Property Office acts as a registry — it’s not a police force. If you need to enforce your patent, you may face some meaty legal costs, even if you’re in the right.
There’s a temptation, with Intellectual Property, to fight competitors and copycats on principle. The reality is that IP for fashion is a complex area. You can spend a lot of money and energy fighting lengthy legal battles, and victory is by no means guaranteed.
Our advice is to register any available rights to your designs as soon as possible, then focus on the more creative parts of your business. If you register Design Rights (or submit a patent) early, then it’s much easier to avoid going to court in the first place.
As a designer, your first job is to deliver exceptional products for customers. Trust your consumer — they know the difference between an original and a knock off. Great design is rewarded, so don’t keep your ideas to yourself — let them out in the world and put a label on everything you do!
For more information on Intellectual Property for Businesses, you can click here. The Gov.uk has some great information for startups and small businesses. Always seek professional advice if you’re unsure.
Thanks for reading!