Fashion Design Protection Post Brexit
Before Brexit, fashion brands could enjoy community registered and unregistered designs protection which covered the UK and the 27 EU member states.
However, since 1 January 2021 these community design rights no longer extend to the UK. If you are a fashion designer, here are some design protection changes to consider.
Unregistered Design Rights
Community unregistered design rights (UCD) provide a 3 year automatic protection to new designs against copying. UCD design protection starts from the day when the design was made available to the public (e.g., when it first appeared in the runway show or in the advertisement). Post Brexit, this right no longer applies to the designs which were first disclosed in the UK.
However, a new Supplementary Unregistered Design Right (SUD) was created in the UK, which is in essence a ‘clone’ of the UCD regime and aims to afford the same design protection in the UK as it existed before Brexit.
However, each design can only be protected by unregistered rights in the territory where it was first disclosed. This means that if a new design is first disclosed in the UK (e.g., during London Fashion Week), it will be protected by the unregistered design right (SUD) in the UK, but it will not be protected against copying in the EU. And vice versa, if a design is first disclosed in the EU (e.g., during Paris Fashion Week), it will be protected by UCD in the EU, but not in the UK.
It is not yet clear whether simultaneous disclosure of the design (e.g., on social media) would mean that it will be afforded protection in both the UK and the EU as this was not yet tested in courts, and there remains a risk that the unregistered design right will be lost completely as it will be impossible to establish the place of first disclosure.
Registered Design Rights
In addition to unregistered design rights, there are two independent registered design rights regimes in the UK and the EU, which could be obtained by filing an application to the UK Intellectual Property Office and the EU Intellectual Property Office respectively. For registered design rights it does not matter where the design was first disclosed, and the registered design rights can exist in the UK and the EU simultaneously. Another advantage of the registered design rights is that it is not necessary to prove copying of the design in the infringement scenario, and it is therefore easier to enforce them compared to unregistered design rights.
Even though it might not be feasible to register all fashion designs you create, you should consider registering at least your key designs to avoid any uncertainty and enforcement difficulties associated with unregistered rights.
Briffa, being expert in all aspects intellectual property law and practice, will be happy to help you put a IP protection strategy in place. If you would like to discuss protection of your designs, please drop us an email or give us a call and we will be happy to arrange a free consultation with one of our specialist IP lawyers.
Written by Anastasia Troshkova, Solicitor