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Suppose you are an emerging designer looking to protect your designs and concepts. In that case, it is certainly worthwhile to consider how you can use intellectual property laws to protect various aspects of your designs and brand. Under Australian intellectual property regulations, you can go as far as to protect your brand name, logo, and even some highly distinctive designs or technologies evolved from your business. This article looks at the many avenues for intellectual property protection available to brands 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 different intellectual property rights. Within the fashion industry, IP Australia outlines what is required to achieve different types of brand protection. 

Avenues of Intellectual Property Protection

What Does It Protect?

Design Registration

You may register the visual aspects of your designs (e.g. your new dress designs) if they are unique and novel. 

Trade Mark

You can protect your brand name and logo by way of a trade mark. 

Patent

If you have a unique process or method for creating clothing or designs, a patent can protect this

Copyright

Sketches and concepts (or any creative process) can receive copyright protection if they are considered a work of artistic craftsmanship.

 

Design Registration

If you have a unique product, design or concept that is distinguishable, you may be eligible to file a design registration with IP Australia. 

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 design is worth protecting. In the past, designers have successfully registered particular features or aspects of their products. A successful design registration grants designers exclusive rights to manufacture, sell or even license the design to others. Furthermore, you can stop any copycats in the marketplace.

An exciting development recently took place in design protection on 30 August 2021. This legislation introduces a few important changes, including a 12 month ‘grace period’ for design applications. This will protect designers who disclose their designs before applying. Additionally, the amended legislation now protects third parties from an infringement action if they used a design before filing an application to protect it. There are also new rights granted to licensees of designs to take action against infringers, without relying on the owner of the design to execute the infringement action.

Previously, there were some stark gaps in implementing these rights, and it was largely met and answered on a case by case basis. The amendment to the legislation codifies and strengthens these rights and will likely give more confidence to designers applying for protection going forward.

Trade Mark

Your business name, personal name, logo and slogan are all registrable as a trade mark. These trade marks all represent your brand, which customers recognise in the wider marketplace. As your business grows, it is vital to ensure you adequately protect your trade marks.

To ensure no conflicts occur during your branding process, it is always prudent to research existing brands that may be similar to yours. This risk assessment process will be fruitful in the long run. If another brand already uses the same trade mark as you, it will save you time and money to potentially rebrand now, rather than later.

If you are looking for an insightful and in-depth risk assessment for whether your trade mark is registrable, contact our team for more information! 

Patents

A patent is only available to unique devices, methods and processes that are new and inventive. You will not be able to patent your clothing, accessories and patterns, as they are artistic creations. However, patent protection may be available to the production process or innovative technology used to create your product.

For example, suppose you have developed an entirely new textile manufacturing method or a new piece of technology that generates patterns. In that case, it may be worth exploring whether patent registration is possible. 

In 1998, 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, so it is always best to get legal advice before applying. 

Copyright

In Australia, copyright is a free and automatic right granted to creative works of expression. For example, it protects the material expression of ideas. Common items that can be protected by copyright include artwork (including sketches and patterns for clothing and accessories). 

Whether or not you can strictly enforce copyright over your clothing sketches, accessories or patterns is a complex issue. While they are automatically eligible to be protected under copyright, the position can become skewed if you work for another brand or if you share the designs with another individual as part of a collaborative process. 

It is recommended that you proceed with any formal protection by way of a design registration. However, if you have any questions regarding your rights under copyright laws, our team can certainly assist.

Key Takeaways

If you are a designer deliberating on how best to protect your creative ideas and products, the best practice is to consider IP protection as early as possible. Many different intellectual property protections may apply to your brand, and it is important to understand which ones are best to protect your designs and business. To find out which form of IP protection is best suited to protect your designs, or for any other questions, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

My fashion designs are unique. Can a patent protect them?

A patent can only protect an innovative method or device, not just a design. However, design registration may be able to protect your design if it is sufficiently unique.

Why should I register a trade mark for my logo?

As a fashion designer, your brand is very important to promote your designs. Therefore, you do not want anyone to use your brand without your permission. A registered trade mark can prevent others from stealing your brand and reputation.

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