I now take a look in more detail about how and why intellectual property is so problematic in the apparel industry.
Brand owners are used to looking to trade marks to protect their brands, but as the main deterrent in the apparel industry where look-a-like copies so quickly follow to market the real thing, this may not bear the hoped-for results due to the relatively long registration times.
That’s not to say that such protection isn’t worth obtaining; registered trade marks will still be back-dated to the time of application and meaningful compensation can still be obtained if the garment attracts a healthy profit margin when comparing the sale price to the cost of production.
And for merchandising such as music and film-branded clothing, delaying the launch of the clothing range to coincide with registration so that protection is immediate, may be a commercial decision which the brand owner is able to take because of the nature of the clothing.
But for brands wishing to deter look-a-like copying and counterfeiting and for fashion clothing where the customer-buying decision may focus as much on garment-style as brand-name, owners need to identify if they can utilise intellectual property to protect the design and features of the garment itself and not just the brand name or logo under which it is sold.
The intellectual property which most usually provides clothing-designs with protection, tends to be a combination of unregistered designs, copyrights and even ‘passing off’ (which seeks to prevent the sale of confusingly similar goods trading on the reputation of the genuine goods).
In particular, unregistered European Community design right is free and does not require registration. Protection is not limited to the appearance of the whole garment; it can attach to a number of features such as lines, contours, colour, shape, texture and the material of the product and/or the products ornamentation. But this is only if the impression created is ‘novel’ and ‘of individual character’, so protection won’t be available to all designs. The protection is limited to three years from the date the designs were first made available to the public and, although this is short compared to other intellectual property, nonetheless it can often be sufficient for a fashion range which has a shorter shelf-life still.
Where a longer period of design protection is needed and the cost are merited, registered European Community design protection enduring for 25 years, may be the better solution. These designs still take some time to register and have a cost (although are typically cheaper and quicker than for trade marks). But this might be justified, for example, where an iconic, design-feature which is central to the current clothing range and can be reproduced in future collections, has the potential to become one of the main reasons for customer-purchase.
In practice, owners of designs will often resort to a combination of intellectual property rights for protection. In the fashion world this will usually be unregistered design right and copyright whereas for brand merchandising a combination of trade marks and copyrights more often provide the best approach.
Yet the reality is that some garment-designs simply won’t attract any meaningful intellectual property protection, or at least none that will provide the required rights of action.
Finally, ensuring that you actually own all intellectual property rights in your range remain fundamental. This may seem an obvious comment to make, but many an intellectual property infringement claim has failed, even when the matter has reached the courts, once agreements have been called for examination and found wanting because they don’t include express transfers or assignments of relevant intellectual property and other rights, whether by any of the various manufacturers, suppliers, designers and freelancers who may be involved in some way with producing the clothing range.
Rag Trade Competition
Translated, the paragraph in the main article using rag trade terminology, means:
“The target has a mixed use as a wholesaler who keeps holding stock for supply on demand who is known to buy-in material left over after cutting which is then cut, made and trimmed on site to produce counterfeit luxury-brand garments which are part-finished as the linings are still to be added. Make sure you get the templates used as cutting guides for the material and the order forms (including quantities and delivery date) for the finished garments, not just the part-finished garments. Take samples of the hangers, bags, Kimball tags etc as well as the paper trail and computers. We need to time the raid when the dealer in the post-cutting left-over material visits, but ideally whilst the people who cut the material to the right size and length according to the order forms and those who add the trims, buttons, piping or press, bag and tag the garments and other final touches etc. are off-site.”