Intellectual Property in the Fashion Industry: what risks will come with Brexit? - by Rafaella de Freitas

In collaboration with the APPG for Intellectual Property, the APPG for Textiles and Fashion hosted the British Fashion in the Global Marketplace event last Wednesday in the Houses of Parliament. Chaired by Dr Lisa Cameron the panel discussed the potential consequences that Brexit will have for British brands who wish to protect their IP.

The panelists were:

 

Intellectual Property (IP) protects a brand, but the panel quickly understood that it is not fully grasped by those who would benefit the most from it - sole traders, micro and SMEs. CEO and Founder of Fashion Roundtable, Tamara Cincik, said: “we have not yet grasped that IP is a brands reputation”. 

Intellectual property rights encompass those that protect your creation from being ripped-off and copied. It includes the design rights, which is anything to do with the physical appearance or format of the design, and copyright, which is the protection of the content. 

In fashion as well as in any other creative industry, IP is central to the success of the company or brand, which by its very nature is dependent on its unique image. The originality of a design is what makes it stand out as exceptional and desirable from other collections, and ultimately, what defines the brand. Ahlya explained the dangers of this - how calling something “Wakeley-esque” actually normalises the rip-off, making it harder for the company to sell their own creations and ideas if another company is selling something similar for cheaper. Ultimately, if it’s not Amanda Wakeley, it’s not Amanda Wakeley.

On top of that, the process of designing and launching a collection is still vulnerable to copies even without intentional imitation. It is very common for brands to see what they thought were exclusive fabrics and patterns appear in other collections because the textile mill has sold a similar or the same fabric to different brands. Even if the designer customizes the fabric, it is still very resemblant of the original. The design and production process can take up to 8 months, with the potential hazard that designers will see other brands release a line with the same fabrics when their collection is already in production. 

In an industry that values innovation, creativity and uniqueness, having your items copied may be detrimental to your business.  John Greager, Solicitor-Advocate and Mediator (Commercial Litigator and IP Lawyer) explains, “The importance of intellectual property rights within the British Fashion Industry cannot be overstated. Creativity and brand reputation are cornerstones of the fashion industry, and what gives them value and protects them are enforceable intellectual property rights.  Without those, a brand’s value can be severely diminished or harmed.” 

He adds, “As part of the European Union, the UK has enjoyed not only free trade and movement of goods, but also EU-wide intellectual property rights enforceable in every member country.  The prospect of the UK, in the near future, leaving the EU without any proper arrangements in place to protect the intellectual property of British businesses and to continue EU-wide recognition, is nothing short of catastrophic.” In consideration of Brexit, “It would be very unwise for businesses simply to take a ‘wait and see’ approach.  They must act now to assess their intellectual property, and take proper advice on protecting those rights, within the UK and across the EU.” 

As part of the European Union, UK designers benefit from the unregistered Community design (UCD) right, which protects designs that are first showcased (or disclosed, as the official term) in EU territory for three years. Leaving the European Union then means that the UK would not be protected by the UCD. This is discouraging not only for UK-based designers, as well as for international designers looking to launch their career in the UK, as they would need to take extra steps to protect their designs. For example, a designer launching their collection in the LFW would not have the same unregistered right as a designer launching their collection in Paris Fashion Week within the EU 27. Potentially it would be smaller or growing designers, and Graduate Fashion week in particular, which exhibits the works of mostly younger designers in the beginning of their career, with fewer resources to protect their work, which would feel the biggest weights of this shift. It could also act as an offset for international and EU students to study fashion design in the UK, as the costs of launching their designs here would be higher (consider international student fees) for fewer benefits. Or indeed to decide to launch their businesses here.

This does not mean that there will be no other ways to protect or claims IP rights. Dids Macdonald urges brands to protect their material and their creations, especially with the uncertainty of Brexit: “Brexit-proof your designs – deal or no deal. Register if possible because when the UK leaves the EU, It will no longer be possible for UK designers, whose designs are first exhibited in the UK, to claim the EU unregistered design right protection in the other 27 member states of the EU. This is because in order for the EU right to come into being in the first place, this first publication / exhibiting must have taken place in a EU member state. As from 1 April 2019 the UK will not be a EU member state. But this doesn’t mean we cannot strengthen our EU relations! All within the fashion sector should becoming ‘IP savvy!’, know the IP laws that protect your creations, create a practical and proactive IP strategy. Basically, if you don’t want people to copy you say so. There is no better place than your website and marketing material. Knowledge gives strength. Designers need to value their creative talent and capacity to innovate.”

Another solution would be to protect designs individually in the each country. Those who would most benefit from these are brands which either produce and/ or sell their clothes in many different countries, as it would make it easier to transport the different parts of the garments across boarders, but also to set prices in each country. Again, though, this is more relevant to bigger companies – i.e. it is a tactic used by Apple – that would not be so vulnerable in the first place, as well as being very expensive. The high cost means that this solution may not even be an option for smaller businesses.

The uncertainty of what will happen with IP in the UK post-Brexit is probably the biggest worry.  But the biggest take-home from the panel was to be active in seeking information about rights and about how to protect your creations. Following Dids’ advice, Brexit-proofing your designs is the best solution so as to not to be caught be surprise by the outcome, which, considering the current situation in Parliament, is impossible to predict.

Tamara Cincikbrexit, Intellectual Property LAw, Fashion Industry, Designer, Textiles and Fashion APPG, APPG