Fashion and Intellectual Property Law: How will Brexit damage the British Fashion Industry? By Lucy Siers
Intellectual Property rights within fashion form a crucial foundation to the industry and have the potential to generate material value for fashion designers. However, the impending loom of Brexit is generating widespread fear throughout the industry. Fear of what the effect of exiting the EU will be on UK IP design rights, and how this could damage the UK fashion and design industry.
The main concern is the potential loss of the protection provided by the Unregistered Community Design Right. A report by the House of Commons Digital, Culture, Media and Sport Committee unearthed the likely ramifications of the loss of this protection. The undisputed view within fashion is that this loss could significantly damage the UK fashion industry. The effect of operating outside of EU IP legal rights may mean that the UK loses its marketing protections, which would weaken the competitive position of the UK’s fashion industry. Consequently, this could undermine the global prominence of events such as London Fashion Week.
General Overview: How Fashion is Protected by IP Law
IP law covers the functioning of 3 different elements: patents, copyright and trademarks. Patents protect inventions of tangible things; copyrights protect various forms of written and artistic expression; trademarks protect a name or symbol that identifies the brand.
The functioning of these elements of IP law aims to strike the right balance between the interests of the designer and the wider consumer interests. These rights generate material value for fashion designers, so they are imperative to the success of a brand.
IP rights can protect the brand identity, which is of crucial importance. Consumers often buy into the name of a brand, which holds a certain reputation and history. Through the use of trademarks, designers can ensure that their brand is protected from infringers and can ensure the maximisation of their profits. The ‘brand’ that can be protected through IP rights includes the name, logo, distinctive print, name of style or colours.
IP rights can protect the design of an item, via either registered or unregistered design. Unregistered design can automatically protect the design of an item for 3 years, granted that the item meets certain criteria. However, by registering the design it can be protected for up to 25 years – but must be of “new” and “individual character”. Registering your design can be beneficial if your design is contested.
Copyright automatically arises to protect works of “original literary dramatic, musical or artistic work”. Considering you can prove a fashion design fits this criteria, copyright is the cheapest way of protecting your IP as it does not require registration.
Patents are used less frequently within the fashion industry because they are costly and operate too slowly for the fashion industry. However, if you have created a revolutionary material then a patent could beneficial.
IP Law: The EU and UK Relationship
EU Directives transposed as UK law, alongside UK case law, fundamentally underpins UK IP Law. The loom of Brexit poses a challenge to this. It is still uncertain what, if any, EU law will be fully transposed into UK law before our departure. Following the repeal of the European Communities Act 1972, the fate of the UK’s IP framework and enforcement mechanisms remains doubtful as the Government has not been clear about whether the secondary legislation implementing the EU Directives will continue to apply.
It must be noted that there is some degree of harmonisation between EU and UK IP law. However, this does not hold true for unregistered designs. The loss of the EU Unregistered Community Design Right would leave a significant gap in protection, which is ringing alarm bells within the fashion industry.
The Brexit Threat to the Unregistered Community Design Right
The Alliance for Intellectual Property described how the unregistered design right goes far beyond anything offered solely by the UK:
“The EU unregistered design regime (although only lasting three years) is more favourable to designers as it allows protection to be claimed for all aspects of a design under one right such as surface decoration and colour combinations which the UK design laws do not. UK unregistered design right only offers protection for the shape and configuration of a 3D design.” [Evidence submitted to the House of Commons Digital, Culture, Media and Sport Committee by The Alliance for Intellectual Property, page 3]
Olswang LLP, a legal firm working for clients within the British fashion industry, explained that a vast majority of the cases they have brought before UK Courts “have invoked Community rather than UK rights.” [Evidence submitted to the House of Commons Digital, Culture, Media and Sport Committee by Olswang LLP, page 1]. This demonstrates the lack in protection that UK rights alone can provide.
The Unregistered Community Design Right allows for designers to disclose their design within the EU, which is done at trade fairs or at London Fashion Week. Caroline Rush CBE, Chief Executive Officer of the British Fashion Council, highlighted that the deep concern within the fashion industry “is that post exiting the EU those rights will not be recognised and if you were to disclose your collection at London Fashion Week, for instance, those rights will not be protected.” [Evidence submitted to the House of Commons Digital, Culture, Media and Sport Committee by Caroline Rush]. Therefore, the loss of this right could also have ramifications for London Fashion Week itself.
Is this an End for London Fashion Week?
The British Fashion Council has explained how London Fashion Week is central to the commercial success of the British Fashion Industry:
“London Fashion Week is an important platform for our country as it positions us as a global leader in fashion alongside New York (USA), Milan (Italy), Paris (France). This has immediate benefit to the British economy in terms of spend, it further attracts inward investment in terms of international retailers, but the most important is arguably the reputation which enables a £28billion industry to be competitive.” [Evidence submitted to the House of Commons Digital, Culture, Media and Sport Committee by the British Fashion Council]
The effects of loosing the UCD right for the UK could be that designers look to the rest of the EU to be able retain its protection. This, effectively, could close down London Fashion Week as a platform to promote British design.
Suggestions for the Future
Olswang LLP has called for “an automatic protection” for British designs, including surface protection, for three years. With Caroline Rush posing the idea of incorporating technology to perform a digital showcase of London Fashion Week within the EU, to ensure protection of designers’ rights on both sides.
However, the British Fashion Council believes that “it is imperative to negotiate a continuation of EU-wide protection for British businesses”.
Tamara Cinick, CEO and founder of Fashion Roundtable, would like to invite you to a Fashion Roundtable IP Law event:
“Fashion Roundtable are the secretariat for the All Party Parliamentary Group (APPG) for Textiles and Fashion. Meaning we organise events for the industry to meet and engage with cross party parliamentarians. It’s a key way that we can ensure our voices are heard in the Westminster echo chamber, where quite frankly it’s already very noisy with the din from other industries. Many of whom make less money than fashion and who won’t be facing the Brexit and IP concerns that fashion will. This is why our next event at the Houses of Parliament, we have organised an event on Fashion and IP on November 13th.
It’s crucial that in these uncertain political times, fashion highlights the complex and potentially damaging details that IP covers, so our talented designers and brands are protected and supported in the competitive post Brexit marketplace.”
If you would like to attend the event please email firstname.lastname@example.org
All quotations within this article were sourced from the House of Commons Digital, Culture, Media and Sport Committee The potential impact of Brexit on the creative industries, tourism and the digitial single market 23 January 2018.