If you're a fashion designer starting your own label, it's essential to think about how you will protect the intellectual property in your clothing designs and brand.
You will need to consider your options from a design, copyright, and trade mark law perspective to decide on your IP protection strategy. This article looks at some of the basics you’ll need to think about.
Trademarking your brand
The first thing you’ll want to do is register your label’s name and logo as a trade mark. This will be integral to building your label’s identity in the minds of consumers, who will associate clothing bearing your trade mark with a certain quality and style.
A registered trade mark is also an important commercial asset. Some iconic fashion brands, such as Chanel or Gucci, have developed enormous value and goodwill in their trade marks recognised around the world.
Remember that your registered trade mark gives you different rights than a registered business name or domain name. A registered trade mark gives you the exclusive right to use your trade mark in relation to your clothing line in Australia and to prevent others from using a confusingly similar mark.
Copyright offers automatic protection for certain types of original works, including artistic works. An artistic work includes things such as 2-dimensional design drawings, photographs or works of artistic craftsmanship, such as an intricate tapestry.
If you’re designing unique, one-off garments or accessories, then your work is likely to be protected by copyright. This means you will have automatic rights to prevent other traders from making and selling knock offs of your clothing. Similarly, your designs will be protected by copyright before they are manufactured.
However, things are more complicated if you’re making mass-produced, ready to wear clothing. This is because, in Australia, an artistic work that initially has copyright protection will generally lose that copyright protection once it has been “industrially applied”, i.e., made in quantities of 50 or more. In those circumstances, you may consider registering your designs under the Design Act. Once you have registered a design, it loses its copyright protection.
Suppose you intend to manufacture multiple items of the clothing or accessories you have designed. In that case, you may want to consider applying to register the designs. A design registration protects the overall look and appearance of your clothing and may include features such as the cut and textile design.
To be registered as a design, the garment must have new and distinctive visual features in its three-dimensional shape and configuration and/or its two-dimensional pattern or ornamentation. This requirement also means that you can’t publicise or advertise your design before you apply to register it.
Once your design has been registered, examined and certified by IP Australia, you can take legal action against a competitor who attempts to copy your design. Registration initially protects your design for five years from the date the application was filed. The design registration can be renewed for a further five years up to a maximum term of ten years.
Design vs Copyright
If you’re making one-off designer pieces or works of artistic craftsmanship, you may have a choice between copyright protection or design protection. The copyright/design overlap provisions in the Copyright Act mean you can’t have both. So how do you decide which is best for your designs?
Copyright offers a much longer term of protection than registered design rights. Copyright generally lasts for the creator’s life plus 70 years. In contrast, the maximum period a design can be protected under design law is ten years. This may be relevant if you are creating iconic fashion pieces. Another consideration is that copyright is free and automatic, whereas one has to apply for a registered design and pay registration fees.
You’ll need to make a commercial decision as to what works best for your label, but design registration is certainly worth considering when copyright protection is not an option because you’re making a range in quantities over 50.
Protection in terms of the Australian Consumer Law
In some cases, neither copyright nor design registration may be an option for you. This would be the case where, for example, you are making your clothes or accessories in large quantities, and the designs don’t meet the novelty requirements for registration. You may be able to rely on the Australian Consumer Law for protection if you have built up a reputation in certain distinctive features of your goods and another designer copies them in a way that is likely to confuse consumers.
To succeed with a claim of misleading or deceptive conduct in terms of the Australian Consumer Law, you’d need to show that the competitor has taken the key features of your clothing designs and has, in promoting and selling their goods, led consumers to falsely believe that the competitor’s goods are made by your label or are somehow associated with your brand.
The copyright/design overlap can be complicated, and it’s worth seeking legal advice about what the best option for your label may be. We can also assist you in understanding what options are available to you if someone copies your clothing.