How to protect fashion in the EU and the Netherlands

Thursday, 27 October 2016

Fashion businesses are design driven businesses. At the heart of fashion you’ll find creativity. Fashion can be fast or everlasting. Fashion covers Zara’s latest offers as well as Hermès’ iconic Birkin bag. How can we protect such different fashion items against copycats and freerides? If you think that fast fashion is too fast for claiming any protection successfully, and iconic fashion too old, this blog might prove you otherwise.

Copyright protected fashion

One fashion item can be the result of many creative choices: for instance in shape, textile, material and prints.  The author of a design may claim copyright protection in the EU if the design is original in the sense that it is the author’s own intellectual creation. Copyright protection does not require any registration. Works of applied art, such as fashion items, can in principle also be copyright protected. Generally, some of the member states use a higher threshold for protection of works of applied art than others. The scope of protection can also differ per country. Dutch law can be considered liberal in this respect: there are no special/other requirements for copyright protection of works of applied art. According to Dutch law, copyright protection terminates on the expiration of a term of 70 years from the death of the author.

Claiming copyright protection successfully requires that the design constitutes the author’s own intellectual creation and bears the personal stamp of the author: the design may not be derived from already existing designs and the author needs to have made creative choices .

If the design was first published in another country than the Netherlands, copyright protection must first be assessed on the basis of the most important international copyright treaty: the Berne Convention. 

Fashion protected by trademarks

Your trademark distinguishes your fashion item from all others. It represents the quality and exclusivity of your fashion items. In fashion, trademarks come in various ways, such as word marks, shape marks, figurative marks (logo’s), position marks (showing the specific way in which the mark is placed on the fashion item) or pattern marks (graphic elements which are repeated regularly). Who would not recognize Louis Vuitton’s patterns, Louboutin’s red soles or Chanel’s logo?

Europe implemented the ‘first-to-file-system’. We therefore advise to register your trademarks before someone else does. For instance as Benelux or as EU trademarks. Signs consisting solely of a shape which results from the nature of the goods, which gives a substantial value to the goods or which is necessary to obtain a technical result cannot be considered valid trademarks. Furthermore, trademarks must not be descriptive. Descriptive trademarks are no good at distinguishing your fashion items, which is the trademark’s essential function!

Design protection

A design is the appearance of the fashion item, consisting of its shape, patterns and colors. In the EU, you can protect your design by obtaining a registered EU design, or an unregistered EU design.

Any design must be novel and have an individual character. A registered EU design is initially valid for five years and can be renewed up to a maximum of twenty-five years. An unregistered EU design is given protection for a period of three years. If you expect that your fashion item is so hot it will be outdated after one season, you might not want to bother registering its design. Even then, your design can be protected against copying!

Slavish imitation?

In the Netherlands, imitating a product of a competitor can also be unlawful under certain conditions. Also if no protection by any intellectual property right can be successfully claimed. Generally, everyone may endow his product with as much reliability and usefulness as possible, using another’s efforts, even if this leads the public to be confused. However, in case one could have made other choices in design without impairing the reliability and usefulness of the product, and this omission leads to confusion of the public, the imitation of a competitor’s product may be unlawful. So copying an competitor’s fashion item might not be such a good idea after all.

Would you like to know more about protecting your fashion designs? Please contact our fashion lawyers Ranee van der Straaten (r.vanderstraaten@banning.nl), Denise Verdoold (d.verdoold@banning.nl) or Evert van Gelderen (e.vangelderen@banning.nl).