Fashion’s fast pace makes it difficult and costly for designers to protect their intellectual property adequately. This is because the costs and timeliness of the process seemingly outweigh the advantages of registering a piece of clothing as a design. Nevertheless, if you are a business that is producing unique fashion items, it is essential that you consider whether design registration is appropriate.
A design registration refers to the intellectual property protection of a product’s visual appearance. This can include the shape of a product or its pattern and ornamentation. The product needs to be used either commercially or industrially. Registration protects the design itself as opposed to the method used to create the product. As an example, design registration would not extend to the hand stitching of a threaded pattern as the hand stitching is a method, not the overall appearance of the protected item.
Elements of Design Protection
As described above, design registration could protect a garment’s overall appearance, including shape and configuration. Regarding fashion, recent cases have also decided that design registration may also cover a garment’s patterns and fabric stitching.
A design, however, needs also to reach the threshold of being new as well as distinctive. This means that it cannot be identical or substantially similar to existing registered designs. If you are successful in registering a design for your garment, you have the ability to enforce your intellectual property rights through exclusive use. Exclusivity permits you to licence or commercialise the design.
The Informed User
If you have been successful in registering your design, numerous factors may lead to a breach of your intellectual property. Firstly, the overall impression needs to be analysed and compared to other registered designs, particularly relating to its identical nature or similarity. The question when determining this issue is whether an informed user would have the overall impression that the design is substantially similar to another design. Some recent cases have taken a wide interpretation of an informed user, including a potential purchaser, or an expert that is knowledgeable about the product’s design.
For designers and fashion houses alike, design registration is said to be the most appropriate method to register your intellectual property. The issue is that the process and costs involved in registering a design can often outweigh the benefits. As an example, if you were to release a line of garments without design registration, these garments may only remain in the market for a short period before the intellectual property protection is enforceable.
Design registration is a complex process and the threshold for new and innovative can be difficult to assess.
Questions? Get in touch with LegalVision’s intellectual property lawyers. We can assist fashion houses with design registration, and if given the opportunity, our CTO can present his compelling argument for featuring hoodies in Sydney’s Fashion Week.