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Industrial Design Protection: What Every Fashion Designer Should Consider Before Hitting the Runway

The fashion industry is an Intellectual Property (IP) intensive industry

The fashion industry is characterised by innovation creativity and imagination that constitute the basis of its function. These certain elements distinguish the special features of each company aiming to attract the customers’ attention. Design right has relevance to the fashion industry in that it can protect the structure, look or design of core products such as clothing, footwear, handbag, and accessory designs.

To qualify for protection through registration, the design must be “new” or “original.” [1] The duration of protection differs from country to country. While the usual term of protection is 15 years (an initial period of five years with the possibility of renewal for two further periods of five years each), some countries provide protection for only 10 years, while others allow even 25.

 

WHO OWNS THE DESIGN RIGHT?

The general rule is that the creator of the design will be the first owner of the design right. However, where the design was created by an employee during his/her employment, the design right will be owned by the employer, unless agreed otherwise.

Designers should also keep in mind the following points:

  1. Misuse (infringement) of the IP of others can be damaging and costly.[2]
  2. IP (Intellectual Property) rights are geographically territorial, so a designer needs to check that a right is available for use in all territories in which they intend to do business, including the need to consider the IP issues before embarking on overseas fashion shows or PR activity.
  3. Ownership of rights that have demonstrated a commercial return is useful in convincing investors, venture capitalists or banks to the commercial value of a company.

Getting value out of your IP

Registered designs can be a valuable business asset and can facilitate commercialisation of a designer’s design rights for additional revenues. For example, a third party who seeks to licence a design may want the comfort of dealing with a registered design. Like physical property owned by a business, registered designs and design rights are property and therefore can be transferred or licensed.

The Dashiki print is a common form of print used for African wear

Licensing, as an example, gives another person or organisation the permitted right to make certain uses of the design for a period of time and in a geographical territory as specified in the licence. [3] Such licences can be non-exclusive, allowing the owner to negotiate further licences, or exclusive, which prevents the owner from entering into further licensing agreements with any other parties.

A licence is usually granted in exchange for a licence fee and/or royalty and therefore can be a source of additional revenue to the designer. Licensing a design can allow a designer to expand new markets, territories and product lines for which the designer may have neither the experience nor capacity to exploit alone.

Furthermore, another example of commercialisation is when the owner of a registered design right has the right to assign ownership of the right to another person or organisation in return for a fee. Therefore, an assignment of a design registration may be a source of income for the designer if he or she does not want to use the design in question in the future. Such assignment must be in writing and signed by the assignor.

In Conclusion

Protecting IP also enables designers to safely access new markets through licensing, franchising, entering joint ventures or other contractual arrangements (including overseas manufacturing, marketing, and distribution) with other companies.

The fashion industry is driven by fast-paced innovative ideas that are embodied in the creation of fashion designs. Today, the fashion industry is one of the most competitive and consistently emanating industries globally. The fashion industry is an Intellectual Property (IP) intensive industry, continually generating and commercially exploiting creative ideas and innovations. By offering IP protection through, design rights and patents, innovation is encouraged, as the creator or owner of the IP rights is rewarded with exclusive rights to commercially exploit their ideas and inventions.

Learn more!

 


[1] WIPO

[2] www.fashion-enterprise.com

[3] www.inta.org

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