Fashion trends come and go, but for designers who take their creative work seriously, protecting the intellectual property (IP) rights in a design ensures long-lasting value.
Unfortunately, entrepreneurs in the fashion industry often need more awareness of the benefits of obtaining registered design protection for their creative IP. Most usually, such individuals tend to turn to legal advice only when they face copying of their unregistered IP, which may be too late for preventative measures to be taken.
Some prominent footwear and clothes manufacturers are aware of the pitfalls of not obtaining design protection and have taken significant leaps and strides in securing design protection for several of their creative designs. For example, some well-known South African and international sneaker and haute couture clothing brands know all too well of the financial losses associated with not obtaining protection for their creative IP and have, from time to time, had to rely on registered design rights to draw a line in the sand against infringers.
Design requirements – but what are they?
Any design that has been applied to an article of manufacture can qualify for design protection provided that, in the case of an aesthetic design, the design is novel and original, and in the case of a functional design, the design is novel and not commonplace.
The rights afforded to a holder of design rights include the right to monopolise the market in a particular territory in respect of the registered design.
The monopolisation of the market essentially means that the owner of the registered design would be able to exclude others, for a period of between 10 and 15 years, from making, using, selling, offering to dispose of, disposing of or importing any article included in a class in which the design is registered and embodying the registered design or a design not substantially different from the registered design.
Apart from these rights being capable of being used offensively and defensively in the country in which design protection has been registered, they can create substantial value for a business – which would ultimately indicate to potential investors the seriousness of a business's strategy in safeguarding design rights and creating a barrier to entry into the market.
Where else can the design be filed – are the limitations or grace periods for filing?
Since most IP rights are territorial, corresponding design applications will need to be filed in other territories within six months from the filing date of the South African design application. There are some exceptions to this rule. For example, suppose a product is released to the public prior to filing a design application. In that case, design protection may still be sought in some countries/territories if this is done within a grace period of six/twelve months of the product's release date to the public, depending on the laws of the countries concerned.
Unfortunately, some countries/regions do not offer such grace periods. Therefore, it is advisable for anyone considering obtaining design protection to check which countries provide grace periods to avoid losing on obtaining design rights in important jurisdictions or, more preferably, to seek design protection before releasing their design to the public.
Take notes or get left behind!
Judging from how prominent footwear and clothing brands are intuitively and purposefully approaching IP protection of their creative efforts, entrepreneurs in the fashion industry are encouraged to take notes from leaders in the fashion industry to avoid being left out behind and/or scrambling to get a decent share of the fashion market.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
