When to Copyright a Clothing Design

Posted by MakersValley on 10/1/18 4:27 PM

In Design Your Business, Challenges in the Fashion Industry

Every industry has a formula for overhead versus profitability. Fashion is no different.

While MakersValley has negotiated a very unique relationship with Italian clothing manufacturers featuring no minimum production order requirements, most clothing factories require a certain production minimum to keep their cost per product unit accessible and make their business profitable. Production facilities in places like China and Vietnam need to reach a specific production quota every month, often in the hundreds of thousands.

Unfortunately, this means that a production order of 250 garments won’t do much to help their businesses. They’ll frequently turn down small batch orders like these.

Be wary of dishonest clothing manufacturers who would profit off of your unique clothing designs.

However, some Southeast Asian factories get around this issue by telling designers that they CAN produce their 250 piece collections. Then, instead of creating only those 250 pieces, they’ll make 20,000 units of the design and sell the extra 19,750 to other distributors or wholesalers. Suddenly something you created uniquely for your own private label has cheapened into something that’s available from wholesalers all over the internet.

Just like overhead versus profitability, the realities of supply and demand are significant. That’s why it’s so important to protect your clothing design pattern – but how do you do that?

Can You Copyright Clothing?

Well, sort of. Allow us to get a little bit technical.

Clothing drawings and models refer to the exterior appearance of a garment product. The drawing is the 2D part, and the model is the 3D shape.

Thanks to the EU, the appearance of a product or part of it can be registered as a design or as a model. What receives EU protection is the result of the lines, contours, colors, shape, surface structure, and materials used to create the product. These are aesthetic aspects of the product only. Functional aspects cannot be protected as garment designs. Those would require a patent.

As a result of EU protections, a piece of clothing, a bag, a shoe, etc. can receive either registered drawings and models protection or benefit from a different type of assurance: design protections for unregistered Community models and designs.

For your design or model to register for protection based on either of these EU guidelines, it must be “new and endowed with an individual and lawful character”. What does that mean? Well...

Is your design new?

The design qualifies as new if no identical designs have ever before been registered. A design or model that differs only in irrelevant details would be considered identical.

In fashion, designers often take products to market to test if they’ll actually sell. Happily, the EU patent and trademark office grants you a 12-month grace period to do just that. However, to do this, you’d still need to start filing to register your unique product within that time window.

Your clothing design must be new, have individual character, and be lawful in order to qualify for a registered copyright.Does your design have individual character?

To qualify as having individual character, your garment design must generate “a general impression that differs from preceding designs”.

Basically, that means that differences in detail won’t be enough for your design to qualify. An informed user, aka. someone with a particularly careful eye, should be able to see that your design is unique.

Does your design appear lawful?

For your design or model to qualify as lawful, it must not run contrary to public policy or to morality.

Just keep your design legal and in arguably good taste, and you should be covered here.

How long do design protections last?

The EU protections of registered designs last 5 years and can be extended up to 25. However, fashion moves so quickly that EC Reg. 6/2002 now grants 3 years of immediate design protections to aesthetically new, lawful, and individual character possessing designs without that formal registration process.

If you’re worried that you won’t benefit from these protections because you live outside of the EU, don’t be. Since fashion is global, so are these protections.

Protect Your Brand from Day 1

Fashion moves so quickly that designs can be trendy today and forgotten tomorrow. Always carefully evaluate whether or not it’s worth taking the time to officially register for design protections.

Usually, it’s best to test designs on the market during the 12-month grace period before making that jump. Sometimes, it may be worth it to just rely on unregistered design protection to guard against intellectual property theft.

However, before you even begin prototyping your products, it’s important to find a manufacturer for your brand who you can trust. Do your homework, and if you vet your factory carefully from the start, you’ll be able to breathe easier knowing that you have both a trustworthy partner and the protection of international intellectual property law on your side.

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