Intellectual rights in fashion

The ranges in the clothing market are vast and the competition is strong. Assortments from different suppliers and retailers sometimes show remarkable similarities. The fashion sector is one of the biggest victims of counterfeiting in the non-digital market. Fortunately, clothing designs are more than once susceptible to intellectual property protection, so that the beneficiaries are not left in the cold.

The most important intellectual rights in this context are copyright, design law and trademark law.

Copyright law

Unlike (registered) design law and trademark law (below), copyright does not require a formal registration. A work automatically falls under copyright protection if it meets the requirements of form and originality.

In the first place, copyright protection can only be claimed for designs in concrete forms. General protection for, for example, ‘animal prints’ or the ‘urban’ or ‘hipster’ clothing style is not possible.

The most important stumbling block, however, is the originality requirement. It is generally assumed that a design is original if, firstly, it is a product of an intellectual effort and, secondly, it expresses the personality of the designer.

The designer must therefore make his own creative choices in order to arrive at the design. For example, a simple representation of a flower, a bird, a square, etc. cannot be protected by copyright. An artistic interpretation of it that bears the maker's personal touch and is the product of his creative endeavor can be.

Consequently, while, for example, a simple or naturally accurate representation of a bird or flower is in principle not eligible for copyright protection, this would be the case for a personal artistic interpretation of that bird or flower, all the more in combination with other creative choices in terms of, for example, color, position, arrangement, background, etc. The aesthetic value of the design, i.e. whether it is perceived as 'beautiful', is in principle not a factor that influences the protection.

Design law

In addition to the copyright discussed above, intellectual rights could possibly also be asserted under (drawing and) design law.

This particular intellectual right exists on three levels. A distinction is made between the Benelux design, the (European) Community design and the international design.

As a rule, the design right, just like the trademark right (below), requires registration.

At European level, however, there is also a design right without a registration requirement: the unregistered Community design. The limited protection of this right, in particular the period of validity up to only three years after the design was first made available to the public, means that it is generally not invoked very often. As will appear from the conditions below, designs protected under this right often also fall under copyright law, which generally offers a more interesting protection (generally up to 70 years after the designer's death). However, one protection does not exclude the other, so that, certainly in the fashion world where designs often last for only one season, the unregistered Community design can still prove to be a very useful tool.

The conditions for design protection in Belgium and in the EU are on the one hand ‘novelty’ and on the other hand ‘individual character’. Novelty is understood to mean that no identical or quasi-identical design may yet exist. Under the requirement of individual character it is understood that the design must create a different impression among the public than the previously existing designs.

Trademark law

In trademark law, just as in design law, a distinction is made between three categories based on geographical area: the Benelux trademark, the (European) Community trademark and the international trademark.

In Belgium and Europe, a sign can be protected as a trademark if it allows, firstly, to distinguish certain goods or services of one company from those of other companies and, secondly, to be represented in a clear and precise manner. You can read more about this last requirement in our earlier blog post. In addition, the sign must also be acceptable and available to be able to be registered as a trademark.

The biggest hurdle for trademark protection in fashion will usually be the distinctive character requirement. Since fashion is inherently temporary and subject to change, designs often do not last long enough to be exclusively associated with a particular designer. Mostly only classic collections of famous fashion houses will be eligible for this. Examples are the damier (checkerboard) pattern by Louis Vuitton and the well-known tartan (plaid) motif by Burberry.

What occurs more frequently is that designers use their company logo or name (which is already registered as a trademark) in their clothing designs. Examples of this include Nike, Ralph Lauren, etc. Also in such cases, of course, it is possible to take action against third parties who infringe on this on the basis of trademark law.

Conclusion

There are several ways to protect fashion and clothing designs against counterfeiting. Depending on one’s specific situation and needs, one form of protection or another (or a combination) can be the best suited. Although it is best practice to think about the appropriate legal protection in advance, it is often also possible to invoke certain protection mechanisms that do not require prior formalities post factum.

Are you having questions about how to best protect yourself against counterfeiting, have you fallen victim to it or are you being accused of it?

Corbus lawyers, especially Vince MATHEUSSEN and Dirk HUYGENS are skilled in this matter and can be of assistance.

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