Top 15 IP tips for the fashion business

  1. Register a trade mark early, especially if it’s your personal name, because this will help to enforce your rights. Having to deal with trade mark infringers is bad enough in the normal course of events, but even more unsettling, when it concerns misappropriate of your personal name.

 

  1. If you have a name similar to another fashion designer, be prepared to negotiate or even just live with the fact that you may need to rebrand, to avoid long-running and expensive trade mark disputes, not just in the United Kingdom, but also overseas.

 

  1. Inform yourself regarding the scope of copyright and unregistered design right, as these provide free of charge protection for the designs you create.

 

  1. Keep details and dated records of your design process, as a matter of course, so that in an infringement situation, you can prove the date of creation of any of your designs. This is often crucial in any dispute as to ownership/ authorship of a design as well as in resolving the question of which entity copied the other.

 

  1. Registering designs provides increased protection and is worth looking into for your important designs.

 

  1. If you are interested in registering designs, be aware that in a lot of countries, designs have to be new to be validly registered. The UK, EU and some other countries have a grace period, allowing designers to sell their designs and then only invest in registration for the most commercially successful. If you do decide to take advantage of the grace period, use a reliable diary system/keep your IP attorney advised, so that the opportunity to register designs is not lost.

 

  1. Use copyright notices and non-disclosure agreements to ensure that those you have commercial dealings with are fully aware that they are not free to copy your designs.

 

  1. Make sure you deal with contractors correctly – under UK Law, the owner of copyright work is the creator or their employer, unless there is an agreement to the contrary. So third party contractors own copyrights in works you commission, unless you agree otherwise.  Such agreements should always be obtained in writing and before work is done, or at least at an early stage. Once a job is completed, both sides have less impetus to clear up legal loose ends.

 

  1. If you think someone is copying your brand or design, make sure you work quickly to get hold of evidence. This means keeping records of any contact you or your employees have with confused customers and getting hold of media cuttings, as well as obtaining and saving screen shorts of any websites or social media postings.

 

  1. Be aware that while BREXIT will bring changes to IP regimes, in the context of copyright, these are not likely to be major.

 

  1. Be aware that the world of trade marks/brands extends beyond logos, slogans and words. The fashion industry relies heavily on non-traditional trade marks such as position marks, stitching patterns, the get up of retail stores, the colour of soles on shoes etc.  These can be powerful weapons in the fight against infringers.

 

  1. The fashion industry is commonly targeted by cyber-squatters, and so it is important to be aware of the issues around domains – see our previous Top Tips article for details.

 

  1. Be aware there are low-cost ways for dealing with infringement of your rights, such as take-downs from social media, applications for Customs seizures and assistance from Trading Standards. Whenever the writers have been contacted by Trading Standards or the Customs authorities, in relation to counterfeit items, they have always been fashion items.

 

  1. If you decide to increase revenue by licensing your brand, be aware that excessive licensing could lead to a situation where your brand is no longer an indication of origin, which could lead to rights in the trade mark in question being lost. Such a situation might arise if lots of unrelated companies were licensed to use the brand in question in relation to shirts, for example, and produced items of wildly varying quality levels.

 

  1. If you use your personal name as your brand and decide to sell your business, make sure you understand and are prepared to abide by the contractual arrangements relating to use of your name. A purchaser is likely to want to have exclusive rights to the brands the business has been using to date. If you don’t intend to retire, you may need to think carefully about how you will work as a fashion designer in the future.

By Andy Clemson and Cathy Ayers

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Posted on: 18th September 2019