Intellectual Property Rights: A Post-Brexit Refresher
By Dids Macdonald, OBE, Chief Executive - Anti Copying in Design (ACID)
Who has time to read reams of small print? As with all major changes in law, Brexit is no different — it’s all unbelievably complicated. Therefore it’s important to know the key aspects that will affect those involved in the creating designs in the fashion sector, and those safeguarding their trade marks and/or creating new brands. These changes are set out in more detail here. Our focus here is primarily on issues around design right and trade marks and touches briefly on copyright and patents. Recent, comprehensive Government guidelines are here
Designers no longer have automatic unregistered design protection in EU27
The biggest change, sadly, is an erosion of design rights with the loss of the Community unregistered design. EU design rights have been a valuable tool for designers seeking to protect their creations. Pre-Brexit, UK designers had access to two EU design rights; a Registered Community Design (RCD) and an Unregistered Community Design (UCD) which provide significant protection for products across the EU at relatively little cost. The UCD was very useful for designers as it arises automatically with no cost or administrative burden on designers. Having left the EU designers will unfortunately suffer a reduction in protection in EU 27.
ACID is still urgently seeking clarification from Government on the simultaneous publication of unregistered designs in the UK and EU. What does this mean to a fashion designer? Well, if you first show a new design in London Fashion week and then a couple of weeks launch it in Paris, you will only get protection in the UK if you are relying on unregistered design right. See here
The UK Government introduced a new Supplementary Unregistered Design Right on Jan 1, 2021
The good news for designers is that the Supplementary Unregistered Design right (SUD) is now available as a strong unregistered design right, however a design will not qualify for a SUD where it is first disclosed in the EU, and equally a design will no longer qualify for a UCD where it is first disclosed in the UK. This means that designers relying on unregistered rights will have to decide whether to seek UK protection or EU protection. This is potentially a significant loss, particularly for any businesses that export or have plans to export in the future and will force more business to consider applying for RCDs to ensure protection in the EU. See information about the new Supplementary Unregistered Design right here as well as a summary of other changes.
Check out here to better understand the differences between registered and unregistered design rights
Designs – See facts and guidelines and top tips here.
Trade Marks – A trade mark is a vital tool to protect your business and your reputation. They act as a badge of origin and serve to distinguish you and your goods or services from those of your competitors. Prior to Brexit it was possible to obtain one EU trade mark (EUTM) which covered the whole of the EU, including the UK. Following Brexit EUTMs will no longer provide protection in the UK (see lour ACID legal affiliate McDaniel Law’s advice here. Copyright & Patents are by and large unaffected – see further information here.
IP ESSENTIALS:
Check your EU registered rights, whether designs or trade marks, to make sure that the mirror UK rights have been properly created and recorded.
If you want to maintain your EUTM’s make sure that you are using them in a member state of the Union.
If you rely on unregistered rights, consider now which market is more important to you; the UK or the EU and implement a strategy for making your designs public accordingly.
It is now relatively inexpensive to register your rights at the UK Intellectual Property Office. Registering has a real benefit as you have a piece of paper, a numbered certificate which says you own the design you have created (so long as the criteria has been met). This makes taking legal action much easier. It is also essential for take down on any online platforms as they insist on registered rights.
If you are relying on unregistered rights, consider the ACID IP Databank which holds over 300,000 copies of designs and copyright works. This doesn’t add to IP rights but give the all-important third-party evidence that designs have been lodged with ACID. A unique, tamperproof number is created for each lodgement.
In 2014, after ACID’s campaign, the intentional infringement of a registered design was made a crime, but this is only half the battle, ACID is continuing to put pressure on Government to make the intentional infringement of an unregistered design a crime to support designers against the insidious crime of producing copycat designs. In what is a David & Goliath continuing struggle only the Goliaths win. If you want to join our campaign to achieve this, please write to Dids Macdonald at info@acid.uk.com
