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For any business that sells clothes, accessories and patterns, your brand is one of your most valuable assets. Within intellectual property (IP) laws, a brand is everything that a customer recognises about your business. This includes your:

  • name;
  • logo; and
  • the appearance of your products.

When launching a clothing business, you should consider how best to protect your designs. In this article, we look at the many avenues for protection available to businesses within the fashion industry.

Types of Protection

IP Australia is the body that governs the protection of IP within Australia. It administers the registration of various different intellectual property rights. Within the fashion industry, IP Australia outlines what is required to achieve different types of brand protection. 

Type of Brand Protection Available to Protect Clothes, Accessories and Patterns?
Design Registration Yes, the visual aspects of these designs may be registered if they are unique and novel.
Trade Mark While you cannot trade mark the items themselves, it is important to trade mark your brand name and logo. 
Patent It is unlikely that patent registration will be appropriate.
Copyright Some aspects can receive copyright protection if they are considered a work of artistic craftsmanship, but it is hard to come by.

Design Registration

When the visual appearance of a product is unique enough to distinguish it from other designs, IP Australia may grant a design registration. If you have designed a new type of clothing, accessory or pattern that does not already exist, a design registration can protect its appearance from being exploited by competitors. A fabric pattern is an excellent potentially registrable design as its appearance may be completely unique to the market.

A unique fashion design that has not been seen before is worth protecting. In the past, fashion designers have been able to successfully register particular features of their clothing. These have included the ruffles on a skirt or the pockets on a pair of jeans. Once registered, IP Australia grants you the exclusive right to manufacture, sell, or license your design. If someone copies your registered design and markets it as if it were their own, you can stop them from doing so.

An exciting aspect of design registration is the right to license your design to other businesses. This involves granting the brand’s permission to use and sell the design. By setting clear parameters around how the brands can use the design, your designs may reach markets that were not initially within your scope.  Furthermore, your brand protection will still be maintained.

Trade Mark

Your name, logo and slogan can all be registered as a trade mark. They are the marks that customers recognise when shopping both online and in stores. As your business grows, it is vital to ensure that these marks are adequately protected. This will ultimately heighten your overall brand protection. When deciding on your branding, do some research on what is already out there.

If you decide on a name and logo, check to see if a business has a similar trade mark already. This is crucial not only because a competing business will not want you to use similar branding, but because IP Australia requires that a trade mark be completely unique. 

When registering a trade mark, you will need to select the classes that correspond to the goods that you sell. Although your business is in the clothes, accessories and patterns industries, there may be some crossover with, say, a company that sells shoes. Therefore, it is crucial that you select all the classes that most accurately align with the products sold by your business.

Patent

In short, you will not be able to patent your clothing, accessories and patterns on the basis that they are artistic creations. A patent is a licence only available to completely unique inventions to make, use, or sell that invention. 

However, patent protection may be available to the production process of creating your product.

For example, if you have developed a entirely new method of textile manufacturing or a new piece of technology that generates patterns, it may be worth exploring whether patent registration is possible. In 1998, a man named Buck Weimer invented ‘Under-Ease’, which is underwear that filters flatulence. The inventive nature of this product was patentable.

Remember, there are very high thresholds for patenting, and there may be more appropriate ways to ensure brand protection. 

Copyright

Copyright is a form of IP protection that is free and occurs automatically. It protects the material expression of ideas. Common items that can be protected by copyright include:

  • books;
  • artwork (including sketches and patterns for clothing and accessories);
  • music, and;
  • films. 

Whether you can copyright your clothing, accessories or patterns is a complex issue. If the designs are one-off items like custom high-fashion garments, accessories, or patterns, then they may be copyrighted. However, if you are planning to mass produce these items, then design registration may be the only form of protection available.

Key Takeaways

When creating a business that sells clothes, accessories or patterns, the best practice is to consider IP protection from the very start of the process. In this article, we have focused on the different types of intellectual property protection available in the fashion industry. To find out which form of IP protection is best suited to protect your designs, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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