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How to Protect Your Designs From Being Copied?

Tips on How to Protect Your Fashion Designs and Intellectual Property

We are all aware that there is a fine line between inspiration and plagiarism but it’s a line that many companies, well established or otherwise, are happy to cross, if they think they can get away with it.

Read on to find out what you can do to stop getting plagiarised and protect your designs.

“Imitation is the highest form of flattery” Coco Chanel.

In the pursuit of the next big thing and when your own reserves of originality may be on the wane, temporarily, it’s easy to jump onto someone else’s bandwagon and pass their work off as your own.

This type of behaviour is rife in all creative industries including but not limited to music, art and fashion as it’s really difficult not to be influenced by the things we see or hear every day.

This overexposure to imagery seeps into one’s subconscious so perhaps some designers could be forgiven for thinking that their ideas are their own.

Why is it so Easy for Your Designs to Get Copied?

  • In our highly visual world where social media platforms champion the sharing and viewing of images, it would appear that highly original work by independent brands can be viewed at the touch of a button or the swipe of a screen.
  • Designers’ original work is uploaded to these platforms for validation from peers, the press and other movers and shakers in the industry.
  • The upside of this frantic need to share is the potential for being discovered as the latest fashion happening.
  • The downside is the fact that you’re leaving yourself open to the plagiarists.
  • There is no harm in being influenced by this visual content as it could be argued that everything has already been done in fashion.
  • However, if that is the case then it’s perfectly acceptable to view these images for research purposes which will lead to innovation within the industry.

One could hazard a guess that to achieve the ideal is to combine the two to elicit a comprehensive understanding of fashion history. Social media can then be used as a platform to view current trends which leads to the creation of entirely authentic and new designs.

In England, one of the simplest methods for protecting your designs is to take photographs of the item or photographs of the drawing and put them into an envelope which is date stamped at the post office.

What Can be Protected?

In regards to protecting your intellectual property, there are a number of options. Bear in mind the following:

In America, in 2010 Senator Charles E Schumer introduced a copyright law which was supported by the CFDA. It stated that “A designer who claims that his work has been copied must show that the design provides a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs”.

What Do You Need to Prove First?

It must also be proven by the designer that the copy is “substantially identical” to the original, so as to be mistaken for it.

The bill would cover all fashion designs, including products such as handbags, belts and sunglasses, for a three-year period from the time the item is seen in public such, as on a catwalk for instance.

Factors that can’t be used in determining the uniqueness of a design are colour, patterns and graphic elements.

In 2002, the European Regulation on Community Designs came into force. This regulation protects new designs with individual character, but considering that designers are limited in the creation of completely new forms, clothing must fit the dimensions of the human body, therefore, products tend to be uniform in their execution.

However, by using one distinguishing item, such as an amazing print or oversized zip, may be enough to warrant the necessity for protecting the single feature or the entire garment.

How to Unofficially Protect Your Designs?

In Europe, designers tend to register accessories and bags for protection, more than clothing. Their view is that the fashion seasons are so short, there is no point to protect garments that have a four-month shelf life.

Accessories, on the other hand, can become classics that are sold for many years and therefore are worth protecting.

An effective solution for European designers is to follow something called the Unregistered Community Design. It’s obtained, informally by simply making the design available to the public, and lasts for three years.

Design Right, an automatic protection is ascribed to shapes of objects. In addition to this, copyright automatically protects your photographs, web content and written work.

In England, one of the simplest methods for protecting your designs is to take photographs of the item or photographs of the drawing and put them into an envelope which is date stamped at the post office. The envelope should be self-addressed and kept, unopen until you need to show proof of your design.

How to Officially Protect Your Designs?

To officially protect your Intellectual Property (IP) your three options include registering a Trademark, registering your designs and applying for a patent.

1. Protect Your Brand With a Trademark

Product names, logos and jingles can be protected by a Trademark. With registration, you’ll be able to:

•    Take legal action against infringers

•    Put the ® symbol next to your brand as a deterrent and warning

•    Sell and license your brand

The trademark you choose can include words, colours, sounds and a combination of any of the previous. Before applying to register your trademark a search must be undertaken on the database to ensure that it hasn’t already been registered.

Should you find an existing trademark that you’d like to use, you can ask the holder of it for permission. If they agree they will need to give you a Letter of Consent, which must be sent in with your application. Allow up to four months for the application.

2. Protect Your Brand With a Registered Mark

Should you choose to register a design you will get protection for the following:

•    Appearance

•    Physical shape

•    How different parts of your design are arranged together

•    Decoration

This service protects both the product’s shape and decoration.

You will also be in a position to prevent others from using it for up to 25 years. You must, however, renew the registered design every 5 years.

The third benefit of registering your design is that it makes taking legal action against infringement and copying more straightforward.

Once your design is registered (it takes a month to process) you may display your registration number on your design. A thorough search of the following design registers must also be taken prior to registering your design. The fees for this service start at £50 for one design, £70 for up to ten designs and end at £150 for up to fifty designs.

3. Protect Your Brand With a Patent

A patent is a form of intellectual property registration, recognising the uniqueness of your invention. Patents are usually time bound for about twenty years. They are costly to acquire and take a long time to process due to the nature of the verification process undertaken, to prove that indeed your idea, work or invention is completely unique and nothing else (already on the market) comes close to it.

These are commonly used in the fashion industry, even if they tend to be underutilised. For further reading, you can go here and here.

Organizations that Can Help You Protect Your Design

The platform ACID  (anti-copying in design) was set up over twenty years ago by Dids Macdonald and an IP lawyer, Simon Clark. It’s a leading design and intellectual property campaigning organization. “We are a forward-thinking trade association for designers and manufacturers; a not-for-profit organisation funded by membership fees.  Our aim is to provide cost-effective tips, advice and guidelines to help our members protect their intellectual property to achieve growth through a proactive IP strategy.

To retain the integrity of our membership, all potential members must be designers or have a design capability and the majority of their products must be designed either in-house or by commissioned designers.  We also welcome manufacturers to join ACID who have entered into license agreements with freelance designers in which the intellectual property rights are assigned to the manufacturer”.

The benefits of becoming an ACID member are plentiful.

  • By using the company logo on your website and other correspondence shows that you’re serious about the ownership of your work.
  • It could also act as a deterrent to plagiarists.
  • The ACID marketplace acts as a portal to promote your designs.
  • It has the added reassurance that all viewings can be tracked and recorded on your profile page.
  • Their data bank allows you to upload your electronic designs and documents to their online Copyright & Design Databank to ensure that you have the third party dated evidence of their existence.

It’s purely for unregistered designs and isn’t an official form of design registration which they encourage designers to go through the UKIPO or the EUIPO.

Conclusion

Perhaps the fashion industry should take a lead from Hip Hop artists. Sampling other artists work and weaving it through their own original beats and tunes is the mainstay of the genre. The difference here, however, is that all sampled material is referenced by the artist who has ‘borrowed’ it for their own use.

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