Original designs that have become public domain before their owner had a chance to sell a single item
It's no secret that famous designers have their unique designs copied the moment pictures or videos from the catwalk hit the (social) media. What an awkward moment it must be for a prominent client of an unnamed luxury brand sporting the designer's latest style to bump into a less prominent client of an unnamed retail chain wearing the "same" style from a general retail chain – the latter style apparently having cost its owner ten or more times less. Inevitably, a client's motivation to buy more expensive and apparently not-so-unique styles is weakened, while the less prominent client assures himself that the logic of "why would I buy overpriced clothes if I can get the same style ten times cheaper from a retail chain?" is correct.
One could argue that the fashion industry did this to itself by adopting the somewhat unfortunate practice of publicly displaying next year's spring / summer collection in autumn of the previous year.
So besides not disclosing their designs to the whole world half a year before they appear in stores (meaning their own stores), what can creative fashion designers do to protect their designs from this kind of exploitation?
Design protection in the EU
Fashion styles such as designs of clothes, bags, shoes or hats may become protectable as registered or unregistered designs, depending on their level of uniqueness and novelty, and other criteria. At the EU level, Council Regulation (EC) No. 6/2002 of 12 December 2001, on Community Designs (the "Design Regulation") lays down the conditions under which a design may enjoy legal protection as a registered or unregistered design.
Unregistered designs may be a practicable solution for small businesses and designers – beginners for whom the fact that legal protection arises only upon the design being made available to the public may not be an issue. For obvious reasons, unregistered Community designs are not an option for fashion designers who want their designs to be secret and protected at the same time.
Registered Community designs – delayed publication
Under article 49 of the Design Regulation, a registered Community design shall be published in the Community Designs Bulletin that is open to public inspection, ie may be freely accessed by anyone. However, article 50 of the Design Regulation introduces a socalled deferment of publication. This allows the design applicant to request, when applying for the design, that the publication of the design be deferred after its registration for a period of 30 months from the filing date (or priority date). As a result, the design will remain secret. It will be registered, but neither its representation nor any related documentation will be made available to the public.
Solution for fashion designers?
How will this work in practice? Let's say a designer creates a set of unique, new dress designs that he perceives as his signature designs. The designer applies for a set of Community designs and requests deferred publication. By the time the dresses are shown on the catwalk, the designs are already protected by registered Community designs, but have remained secret and unknown to the public. The moment the designer spots that his signature designs have been copied and are sold by other retailers, the designer may take immediate action (typically applying for a preliminary injunction) to prevent further sale or marketing of the copied garments pursuant to article 19 of the Design Regulation, in conjunction with articles 9 and 10 of the Enforcement Directive (Directive 2004/48/EC of the European Parliament and Council of 29 April 2004 on the enforcement of intellectual property rights).
For designers who can afford to apply for a Community design protecting the most distinctive pieces of their current collection/s (and who can afford to pay the associated enforcement costs), deferred publication may seem like a partial solution. Partial in the sense that not all designs are eligible for design protection and that no designer can afford to obtain design protection for an entire collection several times a year (pre-collections, standard collections, limited editions, etc).
In the world of fast fashion, digital media and global mass production, designers and artists face increasing challenges to their creativity. Massive copying undermines the value of creative work and deprives artists of their livelihoods. Registration of a Community design with deferred publication offers certain recourse, although designers must be prepared for increased costs: the minimum fee for a single design registration with deferred publication is EUR 270, with another EUR 120 for subsequent publication. While large fashion houses can afford to invest in the legal protection of their designs (with these costs ultimately being passed on to consumers), for individual artists, the costs of registering a design may be prohibitive.
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