Fashion designers like to believe their garment is new, unique and hopefully the next big trend. The general belief is that because the designer has developed the design, they are entitled to certain intellectual property protection over that piece, including stopping others from copying it. This is not always the case.
A design is protected in Australia if it is registered under the Designs Act (the Act). Unless your garment is classified as a 'work of artistic craftsmanship' under the Copyright Act (think Lady Gaga's meat dress), only a registered design will give you enforceable rights for a maximum of 10 years to commercially use, licence, sell or protect your design.
A design is the overall appearance of a product that makes it unique. In fashion, this includes the shape, pattern and ornamentation on a garment. This can be as simple as a sleeve with ruffles on a Target t-shirt, or the silhouette of a couture gown by De La Renta. It does not include the feel or texture of the material (unless, like Lady Gaga's meat dress, the material affects the appearance of the garment).
Under the Act, a design is registrable if it passes the test of being 'new' and 'distinctive'. That is, it must not be identical or substantially similar to any other design previously disclosed anywhere in the world and Australia (including the internet); whether or not it was independently developed.
Some tips on protecting your intellectual property rights for budding designers:
- Do your research and ensure your design does not infringe someone else's registered design.
- Keep your design secret until the design is registered. So don't exhibit it, sell copies of it or upload it onto the internet.
- Once registered, include "registered design" statements on your swing tags to dissuade potential copiers.
- Don't bother trying to register a dress made of meat; this has already been done.
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