Fashion and luxury brands’ intellectual property protection for SS21: it’s by design

Posted: 13/10/2020

As the late Karl Lagerfeld once said, “Fashion is what people wear, not only what you see on the runway” - a concept which certainly seems to have inspired the catwalk at this year’s London Fashion Week and Milan Fashion Week for the Spring/Summer 2021 collections. With a noticeable focus on elasticated waistbands and comfortable trousers, it seems that the relaxed working-from-home look has been a muse for many designers this season, although we are slightly relieved to see that 2020’s most iconic accessory did not mask the creative brilliance on show.

Another noticeable feature was the increased attention paid to ‘waist up’ fashion. It is not surprising, given the vast number of us that now attend our meetings by video link, allowing only a restricted selfie shot to express ourselves. Nevertheless, Prada has it covered: its new collection shows off its famous triangle logo in a supersized form on a long tee, strategically placed just below the neckline, so the opportunity to flaunt the famous mark is not lost on Zoom calls.

As intellectual property lawyers, it’s only natural for us to wonder whether the famous luxury fashion house has taken steps to protect its new designs.

Design rights over new products are sometimes overlooked in the fashion and luxury goods sector, yet the registration process is a simple and fairly cheap way of obtaining a monopoly right to use the design, and prevents others from using a design which gives the same overall impression. The monopoly right is automatic insofar as the owner does not need to prove that another business has copied their design to stop them from being able to use it; they simply can’t. A registered design right lasts for up to 25 years, renewable at five-year intervals.

Registered designs can protect the appearance of an entire product or part of it, including its shape, colours and texture, as well as its ornamentation. They can be registered at a European level, which makes the rights enforceable across all member states of the European Union, or at national level in the United Kingdom. With Brexit impending, some businesses are adopting a cautious approach and filing both types of application.

If a design is not registered, businesses can rely on their unregistered rights (which are available again at national level and European level) but to enforce these and stop another business from using the same or similar design, the business would have to prove that their designs were copied (without permission).

This article has been co-written with Hannah Fricker, a trainee solicitor in the commercial, IP and IT team.

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