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The do’s and don’ts of intellectual property protection in the fashion industry

On 7 August 2014, the district court of the Danish city of Horsens provided its judgment in the dispute between Gudrun & Gudrun, a Faroese fashion company, and Stof og Sy, a Danish rival, that the pattern to the knitted jumpers made famous by the character Sarah Lund in the “The Killing” (the “Jumper Pattern”) was not protected by copyright law due to being hundreds of years old.

What follows is a light reminder to those in the fashion industry of the do’s and don’ts of intellectual property protection, using the Jumper Pattern as a point of reference.

Copyright

Copyright arises automatically once an idea is "put down on paper" or otherwise made into something tangible.  Copyright provides protection for up to 70 years after the death of the artist or designer to the expression (not the idea) of original artistic works (however, where it is possible to obtain a registered design for such articles, the copyright term will be reduced to match the term of protection for registered designs i.e. 25 years).

Had the Jumper Pattern not been hundreds of years old it would potentially have been an original artistic work and therefore have benefitted from copyright protection.

Unregistered Design Rights – UK Design Rights and EU Design Rights

UK Design Rights arise automatically.  They provide up to 15 years protection across the UK for original 3D designs that comprise aspects of the shape or configuration of the whole or part of an article, but not the article itself.  Enforcement requires proof that the design was intentionally copied or that the potential for copying existed.

EU Design Rights arise automatically.  They provide a maximum of up to 3 years protection across the EU to the overall appearance of new 2D and 3D designs, excluding features dictated by technical function.  Enforcement requires proof that the design was intentionally copied.

In this case, the Jumper Pattern would not have qualified for a UK Design Right because it is a 2D surface decoration.  Whilst it would not have been automatically excluded from protection as an EU Design Right for being 2D, it would still have failed for not being a new design.

Registered Design Rights

UK Registered Design Rights and EU Registered Design Rights arise on the filing date of an application.  They both provide a maximum of 25 years protection across the UK or EU (as appropriate) for the overall appearance of a new 2D or 3D design, excluding features dictated by technical function.  Enforcement does not require proof that the design was intentionally copied. 

The Jumper Pattern would not have benefitted from either the UK or EU Registered Design Right because it is not a new design.

Trade Marks

A Trade Mark arises on the filing date of an application.  It provides protection of potentially unlimited duration to a graphic image or logo.  A Trade Mark claim would not have been relevant to the Jumper Pattern.

How to protect your IP Rights

  • Check whether your proposed brand name is available to register as a Trade Mark, if not choose another so that it can be protected.
  • Check whether any proposed designs infringe on anyone else’s copyright or design rights and, if your design does not infringe, register your original design as a UK or EU Registered Design Right.
  • Keep an archive of when any copyright, UK Design Rights and EU Design Rights were created and disclosed to the public for IP enforcement purposes.
  • Ensure that any parties involved in the development of your designs (e.g. employees and manufacturers) sign confidentiality agreements which acknowledge your ownership of the IP rights in the work and prevent the disclosure of your confidential information to third parties.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.