Fashion and IP: what designers should know

By Graeme Payne, Hilary Atherton


Bird & Bird's Fashion & Luxury Goods group recently attended the Textile Forum in London to help raise awareness of IP issues.

Designers attending the luxury fashion fabric show were invited to take part in an interactive copyright challenge which highlighted uncertainties and myths that often surround intellectual property rights in fashion designs.

The designers were split as to whether one fabric design infringed the copyright in another - pictured below

The sketches of two patterned dresses were based on designs which were previously the subject of a copyright infringement case that was ultimately decided by the Supreme Court. The ruling was that the later design infringed the copyright in the earlier design.

"The interactive copyright challenge was intended to be a lighthearted way of raising awareness of IP issues among fashion fabric designers", commented Hilary Atherton, intellectual property lawyer in Bird & Bird's Fashion & Luxury Goods group. "Those designers who did not guess correctly should not be too disheartened. The Supreme Court disagreed with the Court of Appeal, so the answer is not necessarily straightforward, and participants did not have available to them all the evidence that the Supreme Court had. As a result, the challenge stirred up some lively debate at the event itself and has been reported extensively in the trade press".

'Five Changes Rule' and other myths

Hilary added: "One of the purposes of the challenge was to debunk myths such as the 'Five Changes Rule', i.e. that if a designer changes five aspects of a previous design then there will be no infringement, which are just that, myths. However, there are other aspects of copyright law which designers may not be aware of, for example, that even subconscious derivation, where the infringer does not consciously realise he or she is copying an earlier design, can result in copyright infringement."

"In the particular case on which the challenge was based, the original design was protected by copyright because it was 'original'. That's not to say that inspiration can't be drawn from elsewhere when developing a design, but it mustn't be a copy of another copyright work and must involve some 'labour and skill' in order to be protected by copyright", says Atherton."It was deemed that the infringer had taken 'substantial part' of the skill and labour expended by the designer of the earlier design - one of the criteria for establishing whether copyright is infringed."

"In addition, an assessment of copyright infringement will involve taking into account factors such as whether the alleged infringer had an opportunity to copy the earlier design".

Other IP rights to consider

While copyright was the focus of the challenge at the show, other rights (such as design right) will often also be relevant to fashion designs.

"Designers should be aware of the various options available for protecting their designs (including registered and unregistered design rights). It is essential that they keep accurate and contemporaneous records of how, when and by whom the design was created,” advises Atherton.

Bird & Bird partner Graeme Payne, who specialises in assisting retail and fashion clients to expand internationally, added: "Intellectual property protection is fundamental to the successful growth for design lead businesses. The challenge at the Textile Forum highlighted what a tricky area both copyright and design protection is. Bird & Bird is keen to support all businesses that are looking to grow in the right way hence Bird & Bird's sponsorship of the challenge and desire to raise awareness and understanding of intellectual property."

For more information about how Bird & Bird can help you in this area, please click here.