If you are designing clothing there are usually two main elements you will be concerned about protecting:
- the cut of your design (which comes from your design pattern) and gives your garment its overall ‘look’; and
- the print on your garment, e.g. stripes, spots or florals.
This article will explain whether you can, and should, protect your fashion design.
How Can I Protect My Design?
Unlike copyright, which comes into existence as soon as you publish your work, you need to register a fashion design to receive protection from the law. The Designs Act 2003 protects the ‘visual features’ of a product including:
- pattern; and
- decorative elements.
For example, if you look at this image, the design registration could protect the unique one shoulder design of the dress and flared detailing on the sleeve.
Design registration won’t cover the feel of the product or the materials used. Therefore, even if a garment is registered, other designers can use the same fabric for a similarly inspired dress. If the above design was registered, it will not amount to copying under the Designs Act if someone also designed a formal, one shoulder style gown in black.
However, registration under the Designs Act will protect the unique elements of a garment. IP Australia will compare your design with other designs on their ‘prior art base’. If no similar registered design exists, you may be able to register the fashion design. This will depend on the uniqueness of your garment.
How Unique Does My Design Have to Be?
To be protected, a design must be something new and unique. A quick Google search of the kind of product you are making is a great way to start. You can also do a design search on the IP Australia database.
For example, your garment might be unique by virtue of the stitching, the position of pockets or the overall ‘look’ of the garment.
If you are using another fashion brand’s design as inspiration for your garment pattern, you need to make sure you have made enough changes to the original design so that your design is ‘different’ and therefore able to be protected.
Where Will My Design Be Protected?
You can protect your design internationally. However, for each added territory or country, the cost of registering your design will increase. If an overseas company copies and sells your design in their country (where you have not registered your design), you will not be able to take action against them. However, if a company is selling a copy of your registered design product to Australia or another country where you have registered your design, then you may be able to bring an action against them. You can take practical steps such as contacting the website hosts and asking them to take down the selling platforms.
Can I Protect the Prints on My Fabric?
Copyright will protect prints on fabric because prints are not considered a ‘product’ themselves. This also means that if you intend to use another designer’s print, you will need to obtain consent. This usually means drafting a licence agreement.
It is very easy for people to copy, paste and replicate your print from the internet. Therefore, if you are showcasing your prints online, it is a good idea to keep high quality .PNG files for paying customers only. You can also put a watermark over your print to discourage would-be copycats.
How Much Will It Cost to Register My Design?
IP Australia lists all applications fees on their website. Applications for design registration start at $250 per design and increase depending on the complexity of your design application. If you are designing an entire range of clothing, you may only want to register the designs of your most popular products first. Your design will be protected for five years from the date of filing your design registration application.
Should I Register My Design?
If you are producing standard fashion items like jeans or t-shirts, the main concern for protecting your business identity will be protecting your trade mark (that is, your brand name or logo). However, for designers making custom-made pieces especially formal gowns, wedding dresses and other haute couture items, the investment of protection may well be worth it in the long run. Without registration, another designer can simply cut, paste and replicate your design.
If your design is unique, you may be able to protect it by registering your design with IP Australia. Having a registered design means you will have rights against future copycats. If you choose not to register your design, you should be aware of the risks. For example, a competitor may be able to copy your designs and sell them at a lower cost.
For more information and advice on how you can protect your designs and fashion brand, you can contact LegalVision’s Intellectual Property lawyers on 1300 544 755 or fill out the form on this page.
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