February 16, 2018
With the return of London Fashion Week and the uncertainty of Brexit still looming, there has been speculation about what Britain’s inevitable split from the EU will mean for London’s fashion industry.
London Fashion Week (LFW), being one of the world’s leading trade showcases, contributes to making the city one of the biggest four fashion capitals of the world – alongside New York, Paris and Milan. Throughout 16th-20th February this year, designers from all over – including Dubai, Finland and South Korea, will be showcasing their designs at The Strand.
The problem is, changes to IP protection following Brexit – in particular, the loss of the unregistered community design right (UCD), mean that if a collection was first shown in London, the protection against copying is significantly lower than if it were to be revealed in one of the EU member states. Designers will need to choose between UCD rights and a public first reveal at London Fashion Week, or any other UK trade show.
Currently, a designer in the UK could potentially benefit automatically from 2 types unregistered design rights – the UCD and the UK equivalent – the UK UDR. While the UK UDR offers longer protection (up to 15 years rather than 3), it is much more limited in scope, as it protects only the 3D part of the shape. On the other hand, the appearance of the whole product – the lines/ contours, colours, shape, texture/ material etc., will be protected under the UCD.
UCD rights arise automatically if a design is new (i.e. a materially identical design has not been disclosed anywhere in the world); it has individual character (i.e. it creates an overall different impression on an ‘informed user’); and is first made public within EU territory.
Although there has been no definitive guidance from the CJEU and the recent IP paper published by the EU commission did not address the issue, it is generally accepted that when the UK leaves the EU, designs disclosed there will not benefit from the UCD – including those first exhibited at LFW. The impact of Brexit on unregistered designs could be significantly detrimental to the retail and design industry (as these rights are heavily relied upon) and could effectively close down LFW.
In an ideal world, a deal will be made which means post-Brexit the UK will be treated as part of the EU for UCD qualification purposes. It is possible to expand the scope of our UK UDR laws, but EU protection will still remain more valuable in terms of market size. However, while desirable for the UK, this will be politically difficult to achieve. Further industry lobbying is essential to pushing the issue up in both Brexit negations and UK legislative agendas.
The good news is, there are other rights we can rely on – specifically, the UK registered design and registered community design. They do not arise automatically, they require steps (and a relatively low fee), but they offer a higher level of protection than the UCD, and can last for up to 25 years.
If you would like further information about design rights, please don’t hesitate to contact Briffa.
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