In the world of fashion, design theft is an increasing problem. You may be a designer that has had your design stolen or a small brand just starting out. Either way it’s important to understand your rights regarding your designs and how to protect and enforce them.
In this article, Jennifer Wyndham-Wheeler and Dr Radhika Moore discuss IP strategies in the fashion field. They also clarify the differences between copyright and registered designs and how they can protect your work.
Overview of copyright and registered designs
Copyright and registered designs are distinct forms of intellectual property (‘IP’) rights that can be used to protect fashion and designs.
Most artists and designers know that any original artistic work is automatically protected by copyright. Those artistic works may be created by drawings, graphic work, sculptures, photographs or paintings, whether created by hand or digitally. Importantly, copyright is not a registered right, meaning you do not need to file any type of application to obtain copyright protection.
However, relying solely on copyright protection may not be enough to enforce IP rights. This is where a registered design may offer a more suitable IP protection strategy.
A registered design protects a new and distinctive product including visual features such as colour, pattern, shape, configuration and ornamentation. To obtain a registered design in Australia, you must file an application with IP Australia. The design is then registered and, optionally, certified. Generally, the application should be filed before the design is publicly disclosed.
There are different types of designs protection available for different products. If you’re designing in the fashion industry you will want to protect visual features such as colour, shape and ornamentation. You can even obtain design protection for products with repeating patterns, such as textiles.
Enforcement
A registered design can be easier to enforce than copyright because the tests for establishing infringement differ between the two.
To prove copyright infringement, the copyright owner needs to demonstrate that “a substantial part of the work has been taken or used”. The copyright owner also needs to prove actual intentional copying.
However, to prove design infringement, the registered design owner needs to show that the design and the alleged infringing work are “substantially similar in overall impression”. There is no requirement to prove “intent” in this infringement test. As a result, the threshold for proving infringement of a registered design is generally lower.
IP strategy
When a brand is starting out, it is more crucial than ever to develop and invest in an IP strategy that supports your business strategy and strengthens your brand. This includes a considered use of both registered and unregistered IP rights. If obtaining registered designs is part of your IP strategy, then ideally this is done before any disclosures of the designs are made. It’s important to create a comprehensive IP strategy from the start and and it should be reviewed and updated regularly as needed.
Key tips
Some of the key tips we give to our clients include:
- Take early steps to develop an IP strategy. This can set small businesses up for success. You can get meaningful protection that provides a competitive advantage.
- Educate the public on the brand. This can install a sense of loyalty to the quality and the story of the brand.
- Be on the front foot. Clearly mark all products with registrable rights accordingly, so the public is aware the product is protected. This puts potential infringers on notice and can improve the prospects of recovering damages for infringement. Consider watching services to monitor what competitors are doing in the market to keep on top of any potentially infringing activity.
- Consider your budget and the infringing party. Understand the value of your IP against the cost of legal proceedings. Consider whether the infringing party can afford legal representation and the monetary extent of damage of the infringing activity. Investigate IP insurance.
Ready to protect your fashion innovations? Griffith Hack’s experts can help you build a robust IP strategy to secure your brand’s unique designs and competitive edge. Contact us today to see how we can support your creative vision.
