Guest post: Designs, Brexit and the fashion industry

More than six weeks have passed since the UK voted on June 23 2016 by a majority to leave the European Union and uncertainties continue to abound as to when and how the UK Government will implement that vote. What is clear is that the eventual implementation of the vote will have a big impact on businesses which rely on IP rights. In the wake of the Brexit vote, much focus in IP circles has been directed towards whether and how registered, pan-European IP rights will be affected. However, very little attention has been given to an issue which could have a significant impact on one of the UK economy's linchpins - the fashion industry.

In the fast-moving fashion industry, designers are unlikely to apply for registered design protection for designs that change from season to season and more likely to rely on unregistered rights if their design is copied by a competitor.

One of the rights which is best suited to protecting seasonal fashion designs is the unregistered Community design right. As this right derives directly from EU law, it will cease to apply post-Brexit unless the government legislates for an equivalent right under UK law.

Considering the importance of this right to the industry, fashion designers need to be aware of this issue and to ensure that it is addressed by the government. The fact that the government would need to legislate to resolve this issue may give designers the opportunity to shape UK law to better protect British fashion designs.

Unregistered Community design right provides three years of protection to new and individual designs against copies that produce the same overall impression. Many aspects of a design or part of a design can be protected, including the lines, contours, colours, shape, texture and/or materials of a product and/or its ornamentation.

The importance of this design right to the fashion industry is two-fold. First, it is well suited to seasonally changing designs: it would not make sense for fashion designers to apply for registered design protection in designs which will only be marketed for a short time. Second, it protects aspects of design which are important to fashion designs such as surface decoration (a novel pattern, for example), textures and materials.

There is a separate unregistered UK design right under the Copyright Design and Patents Act 1988 (CDPA). However, this is a very different type of right, generally better-suited to protecting industrial or functional designs.

Importantly, "design" is defined under the CDPA as "the shape and configuration of the whole or part of an article". Unregistered UK design right therefore applies to a much narrower category of designs than unregistered Community design right. While it might protect the shape of a handbag, it would not protect the material the bag was made from, or any pattern appearing on it. 

These later features are often what make fashion designs novel, individual and desirable (and hence are the elements which are more likely to be copied by competitors). Loss of the ability to protect such features against copies would negatively impact the fashion industry and other similarly fast-moving design industries.

It is worth noting that registered UK design protection is harmonised with registered Community design protection (as the Registered Designs Act 1949 largely mirrors the registered design provisions in the Community Designs Regulation (CDR)). Brexit may therefore have less impact on businesses in the wider design community which relies more on registered design rights than unregistered.

Unregistered Community design right derives from the CDR. This has direct effect in UK law and the unregistered design provisions have not been implemented in national legislation. Therefore a possible consequence of Brexit is that this protection will fall away when the UK exits the EU.

There has been little attention to the issue in public statements made on the subject. Recent IPO guidance on Brexit stated: "Protection for unregistered designs will continue to exist through the UK unregistered design right. We will consult designers and other users to ensure that the protection provided is fit for purpose."

This suggests that lobbying will be required to ensure that the benefits of unregistered Community design right are maintained and the fashion industry, in particular, should not miss the chance to comment on this issue.

Designers may also have the opportunity to comment on how well the current combination of unregistered UK and Community design rights protect their interests and whether the position could be improved. For example:

• Is the 3 year period of protection offered by unregistered Community designs sufficient or would it be advantageous to have a longer period of protection (unregistered UK designs are protected for between 10-15 years)?

• Does the definition of an unregistered Community design covers all aspects of a design which they would want to protect or are copyists taking advantage of other aspects of design which are not within the definition?

• How easy it is to prove infringement?

• Do the remedies for infringement adequately compensate designers when their designs are copied?

Although it is, as yet, unclear how the UK government will resolve this issue, it seems likely that at the very least designers will have an opportunity to give their views.

Considering the importance of the issue to the fashion industry in particular, fashion designers and brands should follow developments closely and be prepared to seize the opportunity to influence the law in their designers' favour.