September 2021 is already an important milestone in the fashion calendar. Not only is it the start of fashion month (beginning with London Fashion Week) on 16 September but it is also the first instance of fashion month being run in a post-Brexit environment as well as in a post-Covid world. While this may spark new creative ideas and styles, changes to IP law post-Brexit mean there is more uncertainty than usual as to how designers can address copycat activity in the market inspired by this month's high profile shows.
Allegations of copying from designers against high street brands are nothing new. There are many examples of fast-fashion brands such as Zara, Mango and Fashion Nova receiving allegations of copying designs first showcased on the catwalk by designer brands. It's also true that in the digital world we are more aware of this activity than ever before and independent designers, fashion watchdogs and even dedicated bloggers and social media accounts such as Diet Prada are becoming more vocal and visible in highlighting this.
Legally preventing copying is not always easy. In particular, while designers can obtain “registered” design protection for their designs it is often hard to determine the scope of protection provided by unregistered design right and copyright. However, the impact of Brexit has made things more complicated. This is because while the UK created an equivalent “unregistered design right” at the point of Brexit (called “Supplementary Design Right”) to replace an equivalent EU right, the requirement for UK and EU forms of protection is that the design has to be first published in the UK or EU respectively. So, in theory, it's possible that a design first published at London Fashion Week might not enjoy protection in the EU and that a design first published in Milan might not enjoy corresponding protection in the UK.
This seems surprising and it is unclear if simultaneous publication in both locations would meet the corresponding requirements, for example through streaming online so viewers in both territories could view the designs would enable rights to be created (in practice this will be happening since there are a number of “digital” shows taking place in the London Fashion Week programme). However, there has been no leading legal ruling confirming the requirements for first publication and whether simultaneous online publication would be enough. Furthermore, a key issue for designers to consider is that first publication in the UK could eliminate the novelty of their design in the EU and vice versa. Designers may therefore be unable to rely on disclosure at subsequent events and will need to have carefully considered where they choose to disclose their new designs for the first time, for example perhaps in their most prolific market.
As such and while other forms of protection do exist in some cases, certainty on this point is much needed for designers so they have all the legal tools possible to safeguard the creativity and uniqueness of their ground-breaking designs. It will be interesting to see if clarification will be provided by the courts on this important issue through any legal actions taken arising from this month's shows in the UK and EU. More importantly, it will be fascinating to see if there is much needed consistency shown between EU and UK interpretation of the respective rights in each territory. Until clarification is given there is more value than ever before in designers seeking registered rather than just unregistered design protection to minimise the uncertainty. As an additional measure, designers could also look to ensure, during this time of uncertainty, that they collate a portfolio of evidence to substantiate their rights such as dates and methods of first publication as well as records of those attending or viewing their launch events, which could potentially span both UK and EU audiences. Evidence of this nature could be essential for future enforcement against copycat activity.
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