Designers discussing planning, pattern and colors of the room

As we celebrate London Fashion Week Fashionista is pondering whether the same designers will be willing to show in London post Brexit if their designs will not be protected by the Community unregistered design rights?

Fashionista’s legal friends at Olswang have explained that the current legal framework which protects UK creativity and enables new designs to be protected and rewarded originates in large part from European law. There is a real risk that one of the unintended consequences of the British vote to leave the EU could be a loss of valuable intellectual property rights for UK fashion businesses and designers.

When a UK designer or business creates a new design (whether in 2D or 3D) and first shows that new design in the UK, it will automatically benefit from protection from copying for 3 years under the Community Design Regulation. Once Brexit is triggered and the UK leaves the EU, that protection will be lost.

When the Community Design Regulation was brought into force in December 2001 it was heralded as an important measure to protect European creativity and has proved to be just that. While there is a right called “UK design right” which gives new designs a degree of protection from copying, this right expressly excludes surface decoration, which is often a key component of fashion designs.

As a result, the Community design right filled an important gap within UK law and provided much needed protection for fashion designs. In our experience, the Community design right has been a very useful and powerful tool which our clients have relied on regularly to stop plagiarists from copying their original designs. The vast majority of the legal cases that have been brought before the UK Courts relating to designs over the last few years have invoked Community rather than UK rights.

In addition, even if the UK government reformed the current design law to widen the scope of protection to cover all designs that are currently protected under the Community design regime including importantly surface decoration, post Brexit the reformed UK design law can only confer protection within the UK, leaving it open for anyone outside the UK to copy the design with impunity. On this basis, UK creative businesses should take steps to ensure their product launches do not take place in the UK, but rather elsewhere within the EU in order to qualify for the automatic EU wide protection afforded by the Community design regime.

What can the UK government do to support UK’s creative businesses?

The UK fashion industry should work together to lobby the UK government to pass new UK legislation which creates new automatic protection for all new 2 and 3D designs including protection for surface decoration which would, at a minimum, mirror the scope and 3 year term of protection afforded to UK designers under the Community Designs Regulation.

Currently the Community design is such a powerful right because the owner can use it to ask a Court to grant an injunction which stops a copycat product from being sold anywhere within the EU. Post Brexit UK fashion brands will no longer be able to obtain the same pan-European relief, which significantly increases their legal costs as they would be forced to commence litigation in each EU member states where the copycat product was being sold.

Fashionista has learnt that the UK government has asked the UK Intellectual Property Office to consider what steps it should be taking to protect UK businesses. There is currently a window of opportunity to lobby the UKIPO and government to ensure no design rights are lost as a result of Brexit and to seek to put in place a mutual recognition treaty with the EU so that UK Courts will recognise and enforce Community designs when they are proven to have been copied in the UK and EU Courts will recognise and enforce British designs within the EU, ideally on a pan-European basis. (A similar mutual recognition treaty has long been in force for copyright, but nothing equivalent exists for design rights).

What can you do to help?

Join with us to raise awareness of these issues among designers and design-led businesses to ensure that their needs taken account by those in Westminster. We have already reached out to various stakeholders including the British Fashion Council, the British Retail Consortium, Made in Britain and the Design Council. If you represent another stakeholder or are a UK business that could be impacted by these issues, please do get in touch.

Together we must develop a plan to lobby the UKIPO and government to secure the future of UK creative businesses and ensure there is no loss of design rights as a result of Brexit. To join the campaign and lend your support, please email designadvocates@olswang.com to receive updates and invitations to relevant seminars and events

By: Sarah Wright
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