Fashion engineers and designers are eager to protect their brands and stop competitors copying their designs.
Significant money and focus is spent on registering trade marks and protecting copyright. However, designers tend to neglect other types of registrable Intellectual Property as a commercial tool.
As the fashion and design industry evolves, design protection and patent protection may become critical to successful design businesses.
Patents protect the way something works. Fashion and design don’t fall within the traditional notion of the types of products and processes that are patent eligible. This is quickly changing. There are some aspects of design which may be protected by patent.
- some forms of supply-chain management such as shortening the supply-chain or tracing the supply-chain;
- product design such as automating the design process or predicting, determining customer’s preferences;
- manufacturing processes such as rapid iteration and production, automation through using robots;
- innovative functional designs including ergonomics and technical enhancements such as improvements in running technology; and
- sustainability including fabrics and materials, and transparent, ethical labour and manufacturing.
For the time being, Australia has an innovation patent (akin to a Utility Model), which protects innovative and technological improvements for new products, substances, methods or processes which do not meet the inventiveness threshold of a standard patent. See our May 2019 Patent law update below for more details.
Registered Designs protect the way a product looks, they can be used to protect the shape of an object or an item of clothing, or the pattern of a fabric or ornamentation of a garment. For example, an innovative chair shape or an unusual heel on a shoe or the pattern or embossment on a piece of furniture, or ornamental items on a piece of clothing.
A design is registrable if it is new and distinctive over prior designs which came before it. The prior designs include designs publicly used in Australia, and designs published in a document within or outside Australia. The trouble is, this means that a designer can’t test their product in the market before filing a design for the product. Hence, if a designer sells their product in the market, that product is no longer eligible for design protection.
The good news is, after a review of the designs system, the government will change the legislation to include a grace period of six months before the filing date together with a prior user defence (later in 2019 or in the first half of 2020). This means a designer could start selling their product and strategically file a design for one that proves to be commercially valuable. However, this strategy may not work for some overseas markets that do not offer a grace period.
Intellectual Property strategies that including a broad range of assets can provide a valuable commercial edge. Designs and patents may be more relevant to your fashion and design business than you think. To discuss protecting your fashion and design IP please contact our expert Jennifer Wyndham-Wheeler.