Fancy Dress Costumes and Intellectual Property

Costumes based on well-known characters are popular all year round, and especially at Halloween. Selling them without permission can create legal risks, and the position depends on what is being sold and how.

Trade Marks

A costume that carries a registered trade mark, such as a character name or logo, can infringe that mark if it is sold without the owner’s consent. In the UK, this can be a criminal offence as well as a civil matter. Under section 92 of the Trade Marks Act 1994, the maximum penalty is ten years’ imprisonment.

A Dorset online fancy dress seller was prosecuted in this way. She pleaded guilty to seven offences of selling, advertising and possessing costumes bearing illegal copies of registered trade marks, including Batman, Supergirl, Snow White and Harry Potter. Trading Standards began investigating after a complaint from a licensed supplier, and officers seized nearly 200 costumes in 2018.

At Bournemouth Crown Court in 2019, she received a three-year conditional discharge. She was also ordered to pay £65,000 under a confiscation order, plus £1,500 towards prosecution costs, and the seized costumes were forfeited.

Copyright

The design of a costume raises a separate question. In Whimsicality v Rubie’s Costumes, a 1989 US case, a company sold soft-sculpture animal designs, mainly as Halloween costumes. The court held that the designs’ artistic features could not be separated from their purpose, which was to let the wearer dress up as a character, so they were not protected by copyright. This is a US decision, so it does not bind a UK court, but it shows that how a product is sold can affect how it is protected.

In Disney Enterprises v Characters for Hire (S.D.N.Y. 2018), Disney, Marvel and Lucasfilm sued a company that supplied performers dressed as characters from Frozen, the Avengers and Star Wars at private parties. The court dismissed the trade mark infringement claims, finding no likelihood of confusion. It noted that the company used disclaimers and altered character names, and that the studios did not offer private party entertainment themselves. The copyright and dilution claims were left unresolved.

Briffa Bites

Selling costumes that carry a registered trade mark, or copy a protected character, without permission carries real risk, including criminal prosecution as well as civil claims. A costume that only suggests a theme is less clear, and the outcome depends on the facts. These include the branding used, any disclaimers, and whether customers are likely to think there is a connection with the brand owner. If you sell fancy dress, it is worth checking what you are listing before it goes on sale.

If you need IP advice, get in touch with our legal team at info@briffa.com or through our website form. Our IP experts are here to help.