Designers in the fashion industry work hard in order to provide innovative ways to present garments. They are able to bring fresh ideas to the industry and incorporate them into, at times, complex designs that they wish to ensure others cannot copy. So, what are the options for them when it comes to protecting their unique designs in a fashion garment?
The garment itself cannot attract copyright protection unless as a three-dimensional shape it can be classed as an artistic object, which usually refers to sculptures, a work of artistic craftsmanship or an engraving. Artistic works does not include industrial or manufactured objects.
Copyright protection is also excluded from the design document to which the article was made from by not allowing protection on the design drawings.
However, garments may qualify for protection under Registered Design Rights and Unregistered design rights.
Registered Design Right
Protection under Registered Design Right can last for 25 years. In order to qualify, the design in a garment must be ‘new’ and have ‘individual character’ as outlined by the Registered Design Right Act 1949.
A design will be classed as new if an identical design or a design only differing in immaterial details has not been made public before. A design will have individual character if the impression created on the informed user differs from the overall impression produced on such a user by any design made available to the public before. However, this will not apply where the appearance of the product is based on the productÃ¢ÂÂs technical function.
If a registered design right exists in a garment then it will cover the appearance of the product resulting from the features of colours, texture and surface details.
Unregistered Design Rights
Where a product is not registered, it may attract protection through Unregistered Design Rights, which will last for 15 years from the end of the calendar year in which the design was first created, or 10 years from being made available for sale or hire.
However, this type of protection will not cover the colour, texture or surface details, but will instead cover the overall or part of the configuration or shape of a garment that has been made to a design recorded in a document.
With regards to fashion garments, an unregistered design right can arise automatically, however, will only cover the external/internal shape or configuration of an original design.
This will allow a right holder to stop the copying of this aspect of the design.
In order to benefit from a better form of protection that will cover other parts of the design such as the colour and texture of it, then a design should be registered as a design right. This will enable a right holder to stop others from copying the parts of the design that create the overall impression of the product.