Edinburgh Woollen Mill has infringed the copyright in the fabric for a lady’s top according to a judgment given by the High Court at the end of January in a case brought by Response Clothing.
The judgment is important as it expands the scope of protection for fashion designers and will make it easier to prevent the copying of their designs used for fashion garments and textiles.
The infringement was confirmed in a judgment given by the IP Enterprise Court (the specialist intellectual property court of the High Court) on 29 January. The court held that Response Clothing’s wave design for its top was a “work of artistic craftsmanship” and Edinburgh Woollen Mill by copying it had infringed copyright.
Up until this judgment it was the law that designs of this type were difficult to protect by copyright and could only be protected as a design. Why was this an issue? EU Unregistered designs for surface decoration or patterns only last three years (although if registered they can last 25 years). In contrast copyright lasts for life plus 70 years.
The judgment therefore means that clothing designs that are older than three years are now more likely to be protected as copyright works. This significantly increases the ability designers have to protect their designs for a much longer period and will add more value to the designs created.
The judgment also makes it easier to stop copying of older more established clothing designs by using copyright.
Take home points
- When designing a fashion garment keep records of the process including CADS, sketches, mood boards etc.. and make sure these are dated.
- If you have used a freelancer to design the garment for you, it is important to ensure that the designer of the garment has transferred the IP to you.
- If you spot what you think may be a copy of your design act fast and seek legal advice immediately as delay can compromise a claim.
- Finally, if your design is less than a year old and is important you should register it to give you added protection.