Copyright and Fashion
In the UK, fashion designs can be protected as a design or copyright work. However, the designs must be:
- New, not an adaptation or derivative of a previous creation
- Not commonplace, everyday or ordinary
Design Right or Unregistered Design is automatic and lasts for 15 years from creation or 10 years from being made publicly available for sale. (EC Unregistered design lasts 3 years) Unregistered Design Right will only protect 3D designs such as the structure, style, shape, not pattern or colour, therefore does not include textiles.
Registered Designs will last up to 25 years if the registration is renewed every 5 years. Registering a design can protect both 3D and 2D designs. If your design has a unique function, it should be protected as a Patent. If you have created a logo design or name you wish to trade under, it can be protected by registering as a trademark. For more information on Design protection and registering designs, Patents or Trademarks, go to the IPO website. You can also search for registered designs, patents and trademarks via the IPO website.
Protection in the UK is automatic and lasts for 70 years from the death of the artist or designer. If more than 50 items are made from the design by ‘industrial process’ the protection is 25 years from the date of manufacture.
Copyright infringement has mainly been ignored in the fashion industry because clothing is considered as utilitarian, in other words something we need, and because of the fast changing nature of fashion and trends. Many designers use vintage garments or street fashion or trends as reference points or inspiration for their work, therefore already copying.
However in 1994 Yves Saint Laurent (YSL) successfully sued Ralph Lauren for copyright infringement, design infringement and unfair competition of a dress design. The Paris court awarded YSL damages of FFr 2 million (50% for copyright infringement and 50% for damages resulting from unfair competition). Many recent cases that have come to court in the UK have been mainly between the big brand names and concern trademarks, colour ways, textile designs or specific design features like button placement, lace adornments and so on. See cases:
- Vivienne Westwood in Westwood v Knight  F.S.R. 37
- Karen Millen Ltd v Dunnes Stores Ltd  IEHC 449
- Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd  R.P.C.6
- Lambretta Clothing Co Ltd v Next Retail Plc  EWCA Civ 886
Piracy of well known brands is commonplace but discovery by the authorities usually leads to seizure and destruction of the goods. The local Technical Supervision Bureau (TSB) in Beijing destroyed 50,000 Louis Vuitton bags, worth RMB5 million. LV’s agent in China witnessed the destruction of the seized bags. In 2004 the Guangdong AIC reported that infringing products, mainly sportswear labelled “NIKE,” “Adidas,” and other brands with an estimated total value of RMB11 million were seized. Some of the infringing shoes included “NIKE” designs that were scheduled to be launched in 2005.
You have access to three main databases for case law:
Building Law Reports is a specialist database
Tip: It is important you read the report your lecturer has specified as cases can be written up in multiple law reports and different law reports will present the case differently.
Understanding a legal citation
Case law abbreviations
The Cardiff Index to Legal Abbreviations is a free online resource which allows you to search for the abbreviation or the full title of English language legal publications.
Tip: chose 'close' match if you are putting in part of an abbreviation.
Image provided from Citing the Law by Cathie Jackson, Ian Bradley, Matthew Davies and Lynn Goodhew, Information Services, Cardiff University under a Creative Commons Attribution-NonCommercial 3.0 Unported License.
Designs are automatically protected in the UK and the European Community (UCD) from the moment they are created by copyright as artistic works and also by Design Right. They may also be further protected from copying or unauthorised commercial exploitation by registering as a UK Registered Design and/or a Registered Community Design (RCD).
The rights are owned by the creator or by the employer if the design was created as part of normal contractual duties of an employee, unless a contract has been agreed otherwise.
The duration of the protection is:
- Copyright protection lasts for 70 years from the death of the creator.
- UK Unregistered Design Right lasts for 15 years after creation of the design or if marketing 10 years after the first marketing of items that use the design, whichever occurs first. This automatic UK Design Right is only recognised in the UK and will only protect the 3 dimensional shape or configuration of the design. The 2 dimensional aspects of a design such as a surface pattern or texture can only be protected if registered.
- Unregistered Community Design protection (UCD) lasts for only 3 years maximum, allowing 1 year to test the market. However after this 1 year testing, the designs are often considered as having lost their novelty, one of the Community Registration requirements and fail to meet the criteria. Therefore it is advisable to register a design for Community protection within the first year.
- UK Registered Designs Registration must be renewed every 5 years up to a total of 25 years and protects all aspect of a design such as 2D and 3D. Also recommended to protect a design from exploitation outside the UK.
- Registered Community Design Registration (RCD) must be renewed every 5 years up to a total of 25 years and protects all aspect of a design from copying or exploitation across all EU member states.
- International protection Designers would need to apply for registration direct with the individual states. Legislation and protection varies but you can check if a country is a signatory to the WIPO Treaties (World intellectual Copyright Organisation) using their online Country Profiles Tool.
Useful information regarding the recent legislative changes to design rights:
- ‘Changes to design law’ by Sarah Darby of AA Thornton & Co, Lexology.com, September 25 2014
- ‘United Kingdom’ by Richard Willoughby and Richard Burton of D Young & Co, Lexology.com, December 11 2014
Text adapted from an original by Kate Vasili - Copyright Officer - Middlesex University
Patents protect new, original ideas and inventions by registration. Registered Patents are renewable after 4 years then every year up to 20 years. Meanwhile they can be licensed to others for commercial exploitation. In order to qualify for Patent protection, the idea or invention must be:
- a product or process (not a literary, dramatic, musical or artistic work)
- capable of industrial application, having a technical effect
- completely new, unique, or a new inventive step in an existing process
- unknown anywhere in the world before filing (kept secret)
- not obvious to anyone with knowledge and experience in the subject
It is important to keep ideas secret as there is a strict requirement for novelty or originality.
UK Patent applications are made through the Intellectual Property Office (IPO), or for UK and European filings through the European Patents Office (EPO). Applications can take a long time to approve, as they need to undergo all the necessary tests into originality and functionality.
Permission may be granted before applying for patent protection outside the UK and can be applied for separately via:
- European Patent Office (EPO)
- Patent Co-operation Treaty (PCT), via WIPO World Intellectual Property Organization, or Direct to Country of trade if not under any Treaty.
For detailed information and advice, see the Intellectual Property Office (IPO) website.
Text adapted from an original by Kate Vasili - Copyright Officer - Middlesex University
- ‘Protecting Fashion Designs’ by Oliver Herzfeld 1st March 2013.
- ‘Copyright and Fashion: A UK perspective’ by Iona Silverman, WIPO Newsletter, June 2014.
- ‘Protecting Fashion: A Comparative Analysis of Fashion Design Protection in the U.S. and Europe’ by Francesca Montalvo, Cardozo Arts and Entertainment Law Journal, 19th September 2014.
For further information, go to these websites:
- Europeana best practice guidelines on Fashion and Intellectual Property. An excellent source of detailed information.
- Intellectual Property Office (IPO)
- Office for Harmonization of Internal Markets (OHIM)
- World Intellectual Property Organization (WIPO) and their specialist pages on Design law and the European Fashion Sector
- There is also a useful guide on infringement at the Outlaw.com website
- The Fashion Law
- The 1709 blog, deals with copyright law, but has this nice explanation of fair use in fashion.
You can also contact the GCU Copyright Advisor on email@example.com