Fashion designers strive to produce unique items of clothing that reflect their brand and will have an impact on the market. Often, such items have a new pattern, silhouette, or embellishment that makes them stand out.
However, with the rise of fast fashion, it can be difficult for designers to retain a strong brand identity and to reap the rewards of the unique items they design.
Fortunately, designers can secure intellectual property rights in relation to their creations and can use those rights to prevent others from making, selling, or distributing like items.
Below we outline some of the common IP regimes used by fashion designers.
Registered designs protect the way a fashion garment looks. The protection provided by a registered design may include the shape of a garment or the pattern of the fabric.
Registered design protection is used in Australia by many local and global fashion brands. In IP Australia’s most recent report on registered design filings, fashion brand Zimmermann was the second largest domestic applicant.
In order for the product to be a registrable design it must be new and distinctive when compared with the prior art base. A design will be new if it is not identical to an existing design and a design will be distinctive if it is not substantially similar in overall impression to such a design. Substantial similarity is considered through the eye of the informed user and more weight must be provided to the similarities than differences.
Filing a design application in Australia also allows the designer to extend protection into a number of other countries within six months of the date of filing of the Australian design application.
A registered design can provide up to 10 years of protection.
If an owner of a registered design wishes to assert their rights against others, the registered design must first be certified.
Did you know?
Kings Patent & Trade Marks Attorneys can assist you with protecting your Registered Design Brisbane wide.
A trade mark protects the brand name or logos associated with the brand. For example, Louis Vuitton has several trade marks for their LV monogram.
It is important to remember that trade marks can extend beyond just a brand or a logo. For example, Louboutin holds a trade mark for the colour red (Pantone No. 18.1663TP) applied to the sole of a shoe.
Image: Louis Vuitton shoes
A common pitfall when businesses apply for their own trade marks is filing their trade mark in inappropriate classes. When applying for a trade mark, applicants should ensure that they apply in the correct classes noting that there is a distinction between goods and services. If your fashion goods will bear the trade mark, you will need to file in the goods classes. If you are seeking to operate a store under your brand, you will need to file in retail services classes.
Class 25 is generally suitable for clothing, footwear and headgear
Class 35 is generally suitable for retail services.
It is important to also consider where your business might expand in the future. For example, Nike recently jumped on the NFT bandwagon, and filed a trade mark for downloadable virtual goods. A suitable class for such goods is class 9.
Keep in mind though, if you do not use a trade mark in the classes applied for within 3 years of registration, you may be vulnerable to removal action by third parties.
Did you know?
Kings’ Trade Mark Attorney Brisbane team can assist you to ensure you are filing your trade mark in the appropriate class.
Patents protect how something functions. For example, if you have developed a new type of garment closure a patent is most suitable.
The humble zipper was once novel and inventive enough to be granted a patent. Nowadays, there is a high chance that your zipper has a small “YKK” on the pull tab. YKK is the largest zipper manufacturer globally and an excellent example of a comprehensive IP strategy. While YKK did not invent the Zipper, they developed their own zipper manufacturing equipment that has been patented. YKK also hold trade marks for their YKK brand.
Image: YKK logo
The patent law experts at Kings Patent & Trade Marks Attorneys are not very fashionable, but they can help you prepare an on-trend IP strategy to protect yourself and your brand from unauthorised copying.