Protection in the EU fashion design cumulative

Introduction 

Some of the most influential textile and fashion creations in history, as well as some of the most well-known designers, manufacturers, innovators, and artists, like Christian Dior, Giorgio Armani, and Coco Chanel, are all products of Europe. The EU textile and clothing sector has a turnover of EUR 181 billion and employs over 1.7 million people directly across more than 175,000 businesses, according to the most recent data available from 2017. The fashion industry must, however, also overcome substantial obstacles like: -counterfeiting, knockoffs, and unfair competition. In this situation, creating a strong IP strategy and taking aggressive steps to safeguard your fashion company is essential.

In fact, its intellectual property system offers sufficient defence against these difficulties. In order to gain a quick understanding of the protection system that is still in place across Europe, this article will examine the two intellectual property rights—copyright and industrial design right—that are most pertinent to the field of fashion design as well as the copyright laws of a few European countries.

Fashion designs and design protection

There are two types of design protection: registered and unregistered, we shall take a look at both briefly.

Registered community design

The 28 EU Member States (i.e., the many nations that comprise the EU) backed the European Union's development of a uniform approach to the protection of design rights by first passing the EU Designs Protection Directive (98/71/EC), also known as the "EU Directive." Directive of the European Union By requiring member states to register "designs" in order to protect them, national design protection regimes have been standardized throughout the EU. Design is defined as "the look of the entire or a part of a product deriving from the features of... the lines, contours, colors, shape, texture... or its ornamentation." The design must be "unique" and exhibit "individual character" in order to qualify for protection. Novelty in this sense means that there aren't any existing designs that are similar to the public.

If "the overall impression, from the perspective of an informed user, varies from other designs available to the public," a design is said to have "unique character."

Direct submission of a registered community design application to the EUIPO office is possible. In order to get design protection under each Member State's jurisdiction, an EU design may also be registered by submitting an international application under the Hague System and mentioning the EU or specific EU Member States. The Hague system is a worldwide method for registering designs that is run by the World Intellectual Property Organization (WIPO), and it enables the owner of a design to select more than 66 nations that have joined the system in a single international application.

For designs to be protected by registration and to offer owners exclusive rights for a term of five years following filing, which may be extended for another five years up to a maximum of twenty-five years, countries establish legislation, if they are not already in effect. The design directive permitted the legal frameworks of the various European nations to build up their own legal protection for designs. As a result, France, for instance, continues to provide two concurrent protection alternatives for designs: copyright and the requisite registered design rights. If an EU state just provides the bare minimum in terms of design protection, it will be in compliance with the design directive.

Unregistered community design 

The EU adopted EU Regulation 6/2002 (the "EU Regulation") as a follow-up to its design right directive, extending the protection of what was then known as the Community design right to cover both registered and unregistered rights. Notwithstanding the fact that the EU Designs Protection Directive already contained registered design rights, EU Regulation 6/2002 added a new sui generis design right for unregistered designs in the EU. Following the design's initial release to the public in the EU, the Regulation grants protection for three years. There is a time restriction and it cannot be extended. The act of making the design available to the public, which is the key need for protecting an unregistered community, is referred to in the legislation as "disclosure."

The same standards as for registered designs must be met in order to safeguard an unregistered community design. The distinction between them is that registered designs are safeguarded from similar designs. Unregistered designs can only be protected if the infringement was done maliciously, even in the case of a genuine infringement. Nevertheless, because the registration procedure may be drawn out and expensive, unregistered designs are better suited to protect "short-lived items (e.g., products of the fashion sector)".

Fashion Designs and copyright protection

The purpose of copyright law is to promote freedom of speech in all its forms while also preserving originality. The most crucial aspect of copyright law is that it safeguards how an idea is expressed and how it is implemented, not the concept itself. Ideas in particular cannot be protected by copyright laws because doing so would stifle innovation and creativity.

Origin of copyright law for fashion designers 

The need to preserve cotton and linen gave rise to copyright protection in Europe, which dates to the 17th century in the United Kingdom. As regulations have developed over time, they have been expanded to cover more fashion products and to conform to EU standards. The Berne Convention serves as the cornerstone of copyright law as a safeguard against the theft of designs. A member state must provide the same level of copyright protection to citizens of other members as it does to its own citizens. The Berne Convention lays forth the minimum requirements for each member nation's national copyright legislation.

Each Member State's national legal framework offers copyright protection. Each member state has its own requirements for copyright protection (some are stricter, while others have lower standards), but all member states are subject to the harmonisation of the EU Copyright Directives. As a result, the conditions for this protection and its levels are set by the member states. The assumption that the individual who develops a work will become its author and will also get the protection of the law if his or her production is original makes copyright protection automatic, meaning that no formality is necessary to protect the author.

Design and copyright protection: cumulative but not equal

Theoretically, a product may be covered by both copyright protection and registered design protection at the same time. The protection classes differ in terms of both the extent of protection and the running period, which could be important. Normally, copyright protection lasts for up to 70 years after the relevant author's passing, but registered design protection only lasts for a maximum of 25 years.

Essential differences

1. Unlike design law, copyright law does not recognize the term "visual overall impression."

2. Disparate analyses of infringement of exclusive rights.

3. Design protection protects investments in the creation of designs against copying by competitors.

4. Because there is little need for originality, every creation is protected by copyright.

Conclusion

The discrepancies in intellectual property rules for fashion design across the European Union must be understood by fashion designers and businesses. A major location for haute couture fashion firms, the European Union and several of its member nations provide fashion designers with wider intellectual property protection, which is reflected in Europe's image as a fashion center. The sui generis design rights recognized by EU Regulation 6/2002 and the EU Designs Protection Directive (98/71/EC) are separate from the copyright protections provided by national laws in France, Italy, and the United Kingdom. While a designer can opt to have a single regime cover their work, cumulative protection is also an option.

Due to this, judges may occasionally become confused by a fashion designer's dual protection (copyright and design protection), mistaking the novelty requirement for design protection for the originality requirement for copyrights. Nonetheless, caution must be used to distinguish between copyright and design protection and to avoid fusing the "originality" and "individual character" criteria of copyright law with those of design law.