Fashion is undoubtedly tough business. Although law and creativity seem like an odd pairing with the creativity involved in the design process, the law is an important means of ensuring that fashion designers receive the appropriate remuneration for all their hard work. This article explains the process for registering and certifying a design and why every fashion designer must do so.
1. Design Registration
Registering a design is part of the law of intellectual property. This area of law does not only refer to designs. For example, it also includes trademarks and copyright. Nonetheless, whatever the particular form of intellectual property, the core purpose of this area of law is the same: to protect and therefore encourage the effort required to create.
A design refers to the visual features that gives a product its unique appearance. The law is principally concerned with those designs used in an industrial or commercial context. The Design Act 2003 (Cth) gives the person who created the design, or who holds title to it, the right to register as the owner.
Design registration permits the owner to use, licence or sell their design. They can then apply for design certification, making their right legally enforceable.
2. Process to Register
For IP Australia (the statutory body tasked with granting registrations) to register and certify a design, it must be both new and distinctive.
Designs are new if they have not been disclosed anywhere in the world or used in Australia before the date of filing. They cannot be identical to any other design previously disclosed anywhere in the world or used in Australia at the time of filing.
Designs are distinctive when they are not substantially similar in overall impression to any design previously published internationally, including on the internet. They also cannot be designs that have been used previously in Australia.
A person can apply to register their design either online or via the post. Registration costs $250 online or $350 in the post. To ensure that your design is fully certified and legally enforceable, an applicant will also need to pay $420 for IP Australia to examine the design. Existing registrations can also be renewed for five years at the cost of $320 (online) or $370 (post).
Once IP Australia receives an application, the process takes two months. Assuming an application raises no issues or presents no problems, a further twenty working days are needed to register the design formally.
3. Why Register and Certify?
A fashion designer needs to register and certify their designs to protect their commercial identity, brand and distinctiveness. It also means that others cannot profit from your hard work, and you receive an appropriate return on your investment of time, effort and money.
An example of an Australian fashion brand using this fashion design protection is Finders Keepers. Sold in prestigious retailers the world over, they maintain that registering their designs is an essential part of protecting their commercial identity and therefore securing their viability.
The brand produces eleven collections annually, each defined by a distinctive print, shape or style. The company has a firm policy of registering these prints to discourage other brands from using them without permission.
While the company recognises the cost to them in time and money, it still maintains it is an essential part of doing business. Head Designer Kate Anderson notes that while registration ‘is a lengthy and costly process… There is a time when you do have to stick up for yourself and for what you are producing’.
If you have any further questions or need assistance with protecting your fashion designs, get in touch with our IP lawyers on 1300 544 755.