The ranges in the clothing market are
vast and the competition is strong. Assortments from different suppliers and retailers sometimes show
remarkable similarities. The fashion sector is one of the biggest victims of
counterfeiting in the non-digital market. Fortunately, clothing designs are
more than once susceptible to intellectual property protection, so that the
beneficiaries are not left in the cold.
The most important intellectual rights in this context
are copyright, design law and trademark law.
Unlike (registered) design law and trademark law
(below), copyright does not require a formal registration. A work automatically
falls under copyright protection if it meets the requirements of form and
In the first place, copyright protection can only be
claimed for designs in concrete forms. General protection for, for example,
‘animal prints’ or the ‘urban’ or ‘hipster’ clothing style is not possible.
The most important stumbling block, however, is the
originality requirement. It is generally assumed that a design is original if,
firstly, it is a product of an intellectual effort and, secondly, it expresses
the personality of the designer.
The designer must therefore make his own creative
choices in order to arrive at the design. For example, a simple representation
of a flower, a bird, a square, etc. cannot be protected by copyright. An
artistic interpretation of it that bears the maker’s personal touch and is the
product of his creative endeavor can be.
Consequently, while, for example, a simple or
naturally accurate representation of a bird or flower is in principle not
eligible for copyright protection, this would be the case for a personal
artistic interpretation of that bird or flower, all the more in combination
with other creative choices in terms of, for example, color, position,
arrangement, background, etc. The aesthetic value of the design, i.e. whether
it is perceived as ‘beautiful’, is in principle not a factor that influences
In addition to the copyright discussed above,
intellectual rights could possibly also be asserted under (drawing and) design
This particular intellectual right exists on three
levels. A distinction is made between the Benelux design, the (European)
Community design and the international design.
As a rule, the design right, just like the trademark
right (below), requires registration.
At European level, however, there is also a design
right without a registration requirement: the unregistered Community design.
The limited protection of this right, in particular the period of validity up
to only three years after the design was first made available to the public,
means that it is generally not invoked very often. As will appear from the
conditions below, designs protected under this right often also fall under
copyright law, which generally offers a more interesting protection (generally
up to 70 years after the designer’s death). However, one protection does not
exclude the other, so that, certainly in the fashion world where designs often
last for only one season, the unregistered Community design can still prove to
be a very useful tool.
The conditions for design protection in Belgium and in
the EU are on the one hand ‘novelty’ and on the other hand ‘individual
character’. Novelty is understood to mean that no identical or quasi-identical
design may yet exist. Under the requirement of individual character it is
understood that the design must create a different impression among the public
than the previously existing designs.
In trademark law, just as in design law, a distinction
is made between three categories based on geographical area: the Benelux
trademark, the (European) Community trademark and the international trademark.
In Belgium and Europe, a sign can be protected as a
trademark if it allows, firstly, to distinguish certain goods or services of
one company from those of other companies and, secondly, to be represented in a
clear and precise manner. You can read more about this last requirement in our
earlier blog post. In addition, the sign must also be acceptable and available
to be able to be registered as a trademark.
The biggest hurdle for trademark protection in fashion
will usually be the distinctive character requirement. Since fashion is
inherently temporary and subject to change, designs often do not last long
enough to be exclusively associated with a particular designer. Mostly only
classic collections of famous fashion houses will be eligible for this.
Examples are the damier (checkerboard) pattern by Louis Vuitton and the
well-known tartan (plaid) motif by Burberry.
What occurs more frequently is that designers use
their company logo or name (which is already registered as a trademark) in
their clothing designs. Examples of this include Nike, Ralph Lauren, etc. Also
in such cases, of course, it is possible to take action against third parties
who infringe on this on the basis of trademark law.
There are several ways to protect fashion and clothing
designs against counterfeiting. Depending on one’s specific situation and
needs, one form of protection or another (or a combination) can be the best suited.
Although it is best practice to think about the appropriate legal protection in
advance, it is often also possible to invoke certain protection mechanisms that
do not require prior formalities post factum.
Are you having questions about how to best protect
yourself against counterfeiting, have you fallen victim to it or are you being
accused of it?
Corbus lawyers, especially Vince MATHEUSSEN and Dirk
HUYGENS are skilled in this matter and can be of assistance.