Brexit of Fashion

With Manchester being my home city and having built my life in South East London, the past few weeks have naturally been pretty tough. However, despite the evil efforts of a minority to rock our democracy attempting to cast a shadow over our diverse, inclusive and vibrant culture, today marks what it is to live, to have a vote and to celebrate our wonderful, all-embracing and vivacious nation, where everyone has a say!

Union Jack

#strongtogether

So in the spirit of election day as we eagerly await the all important results, not to mention Brexit lurking around the corner and the recent inauguration of the new French president, this post looks at how politics can impact the fashion world by highlighting some potential effects of Brexit on the fashion industry.

* The images used in this post are some of the tributes that have resonated with me during recent events, which I thought would be fitting to share and which remind me of what a fantastic country we live in.

With so much uncertainty around how Brexit will pan out, not to mention our imminent anticipation of who our next prime minister will be during Brexit negotiations, it’s hard to predict what the future of the fashion industry will look like in post Brexit Britain. What is for sure is that so much uncertainty makes people nervous and can, as a result, have negative connotations…

Uncertainty nerves

Uncertainty could lower consumer confidence and diminish purchases in non-essential goods. Having said that, the likes of Harrods and other luxury stores have recently reported record sales. They have cashed in on tourist spending as a result of the weaker pound. For overseas visitors, designer goods are now at bargain prices, being cheaper here in the UK. For example, the Louis Vuitton Peedy bag is around $200 US cheaper in the UK for our American visitors than it would be if they’d bought it back home.

we are not afraid

#wearenotafraid

 

Might we be faced with a new set of laws?

If we look at the law in the strictest sense, the English law governing consumer rights is the Consumer Rights Act 2015. This particular piece of legislation already implements the EU Consumer Rights Directive 2011/83/EU. These are the laws that ensure you have the opportunity to return an item if you’re unhappy with it, or where something you’ve bought is faulty you’re entitled to a full refund. It’s therefore unlikely that our rights as consumers will change drastically in the near future.

What about my trade marks?

With trade marks, many will have opted to apply for an EU Trade Mark (protecting their mark in all EU member states), over a UK Trade Mark (which only gives protection in the UK). At the time of applying, perhaps the main market traded in by the owner was the UK, but the owner wished to expand their business across Europe, hence the foresight of applying for an EUTM. What position will this person be in now we are leaving the EU, will an EUTM still have protection in the UK?

Love for all

#loveforallhatredfornone

It’s a possibility that there might be a transitional system enabling EUTM holders to convert their marks to national UK marks, if EUTMs are no longer enforceable in the UK. In the meantime, there’s also a worry that if those trade mark owners hold onto their EUTM protection, there could be non use challenges if the mark has only been used in the UK in the last 5 years, so such trade mark owners may need to start thinking about using their trade mark in the rest of Europe to avoid losing protection in the 27 member states.

In addition, those who wish to oppose or challenge any EUTM applications or registrations based on unregistered earlier rights, will need to think of a new strategy if those unregistered earlier rights have only been utilised in the UK.

In the same way, registered and unregistered community design rights will no longer be applicable in the UK.

We are not afraid2

#standingtogether

Tariffs and the single market

Another issue is around goods tariffs. British based designers and retailers have moved goods around Europe at no extra cost since the EU single market began over 20 years ago. Brexit might mean this can no longer be done without those designers paying tariffs, such as import and export taxes. This impacts designers who might want to showcase collections at fashion week in Paris or Milan and retailers whose collections are made on the continent. Retailers are likely to pass these costs onto consumers. This all depends on whether the UK remains part of the single market, however there are unlikely to be immediate changes to import and export duties.

Currency affecting manufacturing costs

Currency volatility and a weaker pound could result in brands having to pay higher manufacturing costs to make their products in factories abroad, a cost which would again undoubtedly be passed onto the consumer.

Westminster and London Bridge

#lovelondon

Even for those goods that are British made, the raw materials required to produce them are more often than not imported and purchased in foreign currency. So if exchange rates remain volatile, such higher costs will mean that British brands become more expensive for British consumers.

British fashion industry reputation and appeal

The British fashion industry has many international connections and networks. It is possible that leaving the EU could impact the aspirations of promising fashion talent. Be that through an aspiring young European designer being put off coming to the UK if obtaining a visa becomes far too much hassle, or simply fearing a less inclusive and cohesive community.

London is open

#londonisopen

What next…

To succeed, the fashion industry needs to firstly focus on maintaining and growing its international reputation through pushing and showcasing its best through London Fashion Week. Secondly, the industry needs to reassess its business models and pricing strategies to respond to challenges in the wake of a weaker pound, place less reliance on imports and perhaps focus more on attracting, retaining and developing home-grown talent.

Political round up

As I sit here typing this blog whilst half listening to exit poll bickering, I once again find myself reflecting on the events of the past few weeks. Whichever colour of the electorate rainbow your political alliance resides with today, of paramount significance to me is that those who are lucky enough to live in this democratic society made the most of their vote!

18812939_1093222790811393_3290080278860529664_n

#londonbridge

By exercising our right to vote we honor our privileged ability to live in a free, tolerant and dynamic society. A society that cannot be broken and one that sparkles in its acceptance and celebration of a people made up of those from many different backgrounds, religions and cultures coming together to make our little island GREAT Britain!

Over and out

As morning breaks the party elected to go on and lead us through Brexit negotiations will become clear. Whilst a period of uncertainty will remain over how Brexit negotiations will go, clarity will follow and the UK’s position with regards to Brexit in general and also how this will impact the fashion industry will become light.

One love

#onelove

One love!

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Fashionably GDPR

The Data Protection Directive is so last year. 2017 is all about the GDPR…

The GDP what?

GDPR deals with updates to EU laws on data protection and the more stringent rules to be imposed on anyone processing data in European member states. This post explains the changes in more detail and why fashion businesses should take note.

fas

To ensure your data protection fashion house is in order, read on…

I’m in fashion, why should I care?

So why should a fashion business care about changes to laws on data protection? Well, almost all fashion businesses will collect information, or “personal data”, from individuals, the most obvious example being consumer data collected through online sales. How many times have you personally made an online purchase requiring you to provide endless personal details such as your name, address, email address and possibly your date of birth? All of this is YOUR valuable personal data. How companies use that personal data is now even more strictly regulated than before.

Companies and individuals who do not handle this data in line with the new rules could be faced with a fine of up to 4% of its global annual turnover, or €20,000,000, whichever is more. Wow, and that’s not all…

Businesses that don’t get it together also risk legal action from the individuals whose personal data they are using, since the GDPR gives EU residents direct rights to lodge complaints, obtain court orders and compensation. Aside from this, if what is known as a “data breach” occurs (for example, huge amounts of customer data being lost or falling into the wrong hands) as a result of a failure to follow these rules, then the negative press that would likely follow could be detrimental to the business.

fashion-angel-london-business-mentoring_11

Avoid the headaches of having to deal with a data breach and ensure your business is ready 

So now I have your attention, let’s talk about what you need to know and how to avoid these nasties.

What exactly is GDPR?

We lawyers love an acronym, so for anyone who isn’t a mind reader, the “GDPR” stands for the General Data Protection Regulation. Essentially, it’s an updated version of the old EU data protection system. The GDPR refreshes the rules that must be followed by any organisation that processes (that is to say, uses in any manner) EU residents’ personal data and is aimed at giving people more control over that personal data.

Need to Know

Here are some main points you need to consider to get your data protection swag on:

  • Processors on the hook

To date, data controllers (those who have control over how data is stored, transferred or used) have been the party responsible for the safeguarding of individuals’ data, even where they instruct a third party to process data on their behalf. The changes ensure that not just controllers, but also processors (the third parties who are merely processing the data on behalf of the controller) share responsibility where appropriate.

This means that if for example you’re a data analytics company, reporting on certain data trends occurring among clientele of fashion royalty Chanel, then you, not just Chanel, could be on the hook. If by using Chanel’s data, containing personal information of Chanel customers residing within the EU, a data breach is committed through your failure to follow the GDPR then you will be responsible. This would be the case even where Chanel has ultimate control over how the data is processed.

coco_chanel_1920

Know your responsibilities as a data processor, it could be you on the hook!

So if you process personal data for customers, you need to start looking at your contracts with those customers. Equally, if you pass on any personal data of your individual customers, for example, for credit checking, then you should already have been making sure that your processors are aware of their obligations.

  • A right to be forgotten

An individual will have the right to insist controllers delete data about them, to the point where it cannot be recovered. However, it’s important to note that his right only applies where the controllers have no conceivable need to retain the information.  The old regime did place an obligation on controllers to delete personal data no longer needed, but under the new rules individuals have more clout to ensure this is done.

This can be costly for a business if its software doesn’t currently have the ability to erase data to the point of no return. If you’re savvy and are already thinking about updates to your software, you might want to start enquiring about this with your developer now.

data-erase

Be prepared and implement compliant systems early doors

  • Are you giving users enough information?

You will need to provide more detailed information about your data processing, for example, where it is going, what it’s used for and how long you intend to keep it. This information needs to be communicated clearly in an easy to read and easy access format that is written in a way that can be understood by those targeted by the organisation collecting and processing their data.

The practical effect of this is that privacy policies, as found on every website, will need to be drafted more carefully and often tailored to a specific audience.

  • Obtaining consent

Under the GDPR, consent to the processing of personal data must be freely given, specific, informed, unambiguous and displayed by a statement or by a clear and positive action.

Under the old regime, an organisation could rely on what was known as an “opt out” mechanism, i.e. on the presumption that where an individual does not contact them informing of their wish to opt out of data processing, then a simple privacy policy displayed clearly on the organisation’s website would do. This is no longer the case. Consent now has to be explicit, so nothing short of an “opt-in” tick box will suffice. Individuals also have the right to withdraw consent or opt-out at any time.

doisneau-chanel-stairs

Don’t stand around relying on opt out mechanisms. Take action now and ensure your websites enable opt in tick boxes

Brexit

No legal update would be complete without a comment on the effects of Brexit…

You might think, “bingo! We’re leaving the EU, surely if I’m a UK company, then this doesn’t apply to me?” WRONG! Any business, regardless of whether they are based in the EU or not, will still be expected to comply with the GDPR if they process the data of an individual residing in an EU member state.

So nice try, but if your customer base includes EU nationals then these rules still need to be followed to the letter!

What’s Next?

You have until the 25th of May 2018 to comply with the GDPR. That might seem ages away, but in reality there’s heaps to do to get your data protection house in order. You’ll need to analyse your data flows, understand where there are gaps in the business that contravene the new rules and put systems and processes in place to overcome them.

keep-calm-and-prepare-for-gdpr

Preparation is key!

The sooner you start the easier it’ll be, so what are you waiting for!?

This post highlights just a handful of the issues that need to be considered under the GDPR for fashion businesses. For more information or specific advice, don’t hesitate to get in touch via the contact me page above!

Amazon – hot to trot with fashion offering…

DVDs, CDs, Zak Posen, Books…Hang on a minute; did you just say Zak Posen…on Amazon?

It’s well known that Amazon has been trying to enter the fashion world for some time, and 2015/2016 has really seen it step up its efforts to break the notoriously difficult market.

Amazon

Hey little guy! We love the Ama-bot! Perhaps all Amazon fashion deliveries should come in a package like this one…

The beginning…

Amazon has been on the fashion trail since as early as 2006 when it first acquired online retail website SHOPBOP. In 2011 it launched MyHabit, another online retail website created “in response to customers’ desires to shop intelligently from a selection of great brands”.

In 2012 it really took a leap of faith, opening a huge Brooklyn photography studio, hiring Barneys’ Fashion Director as an advisor and launching My Fashion on the Amazon website, a section dedicated to all things fashion. The following year saw the launch of East Dane, an equivalent to SHOPBOP targeting the male market.

Barneys NYC

Amazon pulled out all of the stops, even hiring Barneys’ NYC fashion director to advise on all things fashion!

Louis Vuitton on Amazon?

So has Amazon attracted any high fashion brands?

Well, not as yet, unfortunately! Designers such as Louis Vuitton have been reluctant to create an association with Amazon, preferring to keep their designs exclusive and prices high. In fact, the then Louis Vuitton Chief Executive, Yves Carcelle, made this perfectly clear during 2012, telling Vogue UK that “Amazon will never sell Louis Vuitton, because we are the only ones that sell it.

LV

“Amazon will never sell Louis Vuitton”…

In 2015, the Chief Marketing Officer of Amazon’s fashion division explained to Business of Fashion that they were not targeting designer brands, confirming that “there has been a lot of speculation on us entering the luxury market and that is just not something we’re focused on right now.

So which brave brands have been enticed by Amazon? Well, high profile designers such as Zac Posen and Kate Spade are both available on the US site, whilst Lacoste, Calvin Klein, Tommy Hilfiger and Hugo Boss can also all be purchased via amazon.com. Amazon also has a partnership with department store giants Debenhams. So whilst many designer brands may have thus far resisted Amazon’s call, Zac Posen can hardly be considered downmarket (especially not when a handbag could set you back $595!).

Lacoste

…but it will sell Lacoste!

The mission continues

Not one to be defeated, Amazon has continued to try and develop its fashion credentials, sponsoring the first ever New York Men’s Fashion Week held in July 2015, and the OCFDA/ Vogue Fashion Fund Fashion Show held during October 2015.

Vogue

All about British Vogue

It has also partnered with up and coming British model Suki Waterhouse, marketing her favourite Autumn/Winter pieces that are all purchasable on Amazon, whilst East Dane has launched a new Michael Kors collection dedicated to ‘streamlined accessories’.

October 2015 saw the purchase of the new season of the fashion based reality show ‘The Fashion Fund’. The show features none other than fashion royalty Anna Wintour and Diane von Furstenberg, and a dedicated section on the Amazon website will be set up to sell a collection of the 2015 finalists’ designs.

The new Prime Now service may also be a step towards the coveted fashion elite, with customers able to buy clothing and accessories with one and two hour delivery slots.

The future…

It’s clear that Amazon has increased its efforts to become a fashion destination, and there appears to be no sign yet that it will be slowing down any time soon. So whilst you may have to currently shop elsewhere for your Chanel handbag or Louboutin heels, there may be a time very soon when you can buy these alongside your books, DVDs and CDs, perhaps even by drone delivery!

Chanel

Wonder what Coco would think about her legacy brand being potentially bought alongside groceries?!

Hey! Hands off my IP! (Design Rights)

Continuing with the Hey! Hands off My IP series, October’s blog post looks at the benefits and drawbacks of design rights for fashion brands, and asks whether it really is worth pursuing a registered design right in the fashion industry.

Vintage Courreges shades

An iconic sunglasses design from the 60’s space age designer, Andre Courreges

What are design rights?

Design rights protect the appearance of a product, or part of the product, enabling owners of the design to enforce their rights against anyone using the design without consent.

Under English law, you can have a registered or unregistered design right and rely on either for protection. However, registered design rights offer more protection. A registered design right lasts for up to 25 years (subject to renewal every 5 years), whereas an unregistered design right is only valid for either:

  • 10 years from first marketing the product made to the design; or
  • 15 years from creation of a design document

whichever is shorter.

If relying on an unregistered design right, the right doesn’t actually come into existence until the design has been recorded in a design document, or an article has been made to the design.

Records

Record everything!

Designers should therefore always sign and date their design documents. Records should be kept of the design document and the design process, and the date of first marketing of articles made to the design should also be recorded. These will be needed if your design is infringed in order to prove the date from which the right exists and that it is still valid.

Design right criteria

For both registered and unregistered design rights, a design must be:

  • made up of a shape or outline of the whole or part of an object;
  • original and have individual character, which means that it cannot be common; and
  • recorded in a design document or be the subject of an object made to the design.
Fashion design 1

Even a rough sketch of your design will be a sufficient record

To be protected by unregistered design right, a design must not be:

  • a method or principle of construction;
  • comprise features of shape or configuration of an object which:
    • enable the object to fit with another object so that either object can perform its intended function; or
    • are dependent upon the appearance of another object, of which the article is intended by the designer to form an integral part; or
  • be a design for surface decoration.

For all of you legal buffs out there, the relevant statute is the Copyright Designs and Patents Act 1988 and the above criteria and restrictions can be found at section 213 here.

What can’t be registered

There’re always some restrictions on what can and can’t be registered, here are some of the main ones:

  • hidden parts (parts which can’t be seen once the product is made);
  • features which are needed to allow the object to perform a technical function; or
  • designs which go against public policy or morality.
Restriction

Don’t forget to consider the restrictions before applying to register a design

Why register?

Apart from being easier to prove than an unregistered design, and the fact you have 10, possibly 15 years more worth of protection, other benefits of registering as opposed to simply relying on unregistered rights are:

  • Speed: Protection starts from the application date. Registration is likely to take place within two months of filing the design with EU Intellectual Property Office.
  • Geographical scope: With a registered Community Design, the right provides EU-wide protection with the possibility of further international protection.
  • Enforcement: A pan-European injunction may be available and is a cost-effective way of protecting a design in a number of different markets.
Speed

The registration process is fast, unlike registration of other IP rights

What do I need to do to register a design right in the UK?

It’s always worth doing a clearance search first to check there isn’t a similar design right registered in the territory you’re looking for protection in. However, unlike with trade marks, the examiner assessing your application doesn’t notify owners of those designs, which could be deemed similar. Instead it would be up to those owners to check on any design rights potentially infringing their earlier rights and challenge on the basis of infringement. This means the registration process is fast!

If you elect to have a clearance search carried out, once you have the go ahead, you can register a design with the UK Intellectual Property Office for UK-wide protection only, or with the EU Intellectual Property Office for EU-wide protection in all 28 Member States. A registered Community Design (EU-wide) is more expensive, but obviously offers much more protection than registering in the UK only.

As with all IP rights, it’s really important to get an expert involved to avoid any nasty pitfalls. Be sure to therefore instruct a lawyer to carry out any clearance searches and register the designs for you – not only that, it takes the hassle away from having to do it yourself!

Register

Registering a design right can be hugely beneficial, but be sure to consider your individual circumstances to assess whether it will work for you!

When should I apply to register my design?

An application to register a design should be lodged prior to publication, ideally the day before, or the same day that the design is showcased to the public.

Is it worth a fashion designer applying to register a design?

As an early stage brand unless you are likely to re-use the design, collection after collection, season after season, then it’s not worth registering a design in the fashion industry. Doing so could be extremely costly given the amount of individual designs one collection will produce and the amount of collections a brand will show during its lifetime!

However, that said, some designers do re-use particular designs as a sort of trade mark of their brand. Take for example Chanel’sBoy Chanel” iconic handbag, or Dior’sFuturist Boots” from Raf Simons’ Spring/Summer 2015 collection.

Chanel boy bag

Chanel’s iconic “Boy Chanel” handbag registered design

At this particular show, Simons exposed a supernatural fashion crusade between past, present and future, which was inspired by David Bowie, who provided a soundtrack for the psychedelic looks on the runway. On his design, Simons commented, “This season, the Dior couture woman will walking on diamonds on the soles of her shoes”, pure poetry!

With such an iconic design, and given the magnitude of the design house itself, it’s no wonder that the House of Dior Couture wanted to protect this particular design.

Dior Futurist Boots

Walking on diamonds, here’s an example of Dior’s “Futurist Boots” registered design

If however, you think a particular design will only be shown once in one collection, or isn’t likely to become iconic of the brand itself, copyright is perhaps a better intellectual property right to rely on to keep costs down. See my previous post, “Hey! Hands off my IP! (Copyright)” for more info.

FTL verdict

When protecting designs, here are some really useful practical steps to consider, whether relying on unregistered or registered design rights, or copyright:

Fashion design sketch 2

It’s always a good idea to keep documented evidence of your designs, whether you decide to apply for registration or not

  • Use appropriate copyright notices. These put third parties on notice of a designer’s rights, such the rights in a design drawing. These should take the form of “Copyright © – [name of copyright owner]” followed by the date of first creation (the year will be sufficient), for example “© Sarah Simpson 2007”.
  • Safely archive the original design drawings, with dates and stamps/signatures.
  • Think about creating a stamp to use on key documents to mark their importance.
  • Avoid circulating design drawings, sketches and other prep work to third parties.
  • Keep contact details for each individual designer or artist working for you, including their name and nationality, copies of their employment or consultancy contract and any assignment documents.
  • Have the above documents checked by a lawyer to ensure it is the brand that owns the designs and not the individual designer – this is particularly important where designers are engaged with the brand on a consultancy basis, rather than employed by the brand.

Pants Down at Black Forest Games!

After regrettably buying my husband a PS4 for Christmas, I thought it was about time I posted for all of the gamers out there, but of course maintaining a fashion link!

This week’s post focuses on Black Forest Games’ unsuccessful EU Trade Mark (EUTM) application for DIESELSTÖRMERS after opposition from the Diesel clothing brand.

The folks at Black Forest said “the decision caught us with our pants down” and issued the following photograph. At least the brand hasn’t lost its sense of humor!

Dieselstormers

That’s one way to respond to an EUTM application opposition!

All about the game

Dieselstörmers is a computer game, described as combining “roguelike action with 3D graphics and lots of old-school run ’n’ gun action”. In all honesty, this doesn’t mean a great deal to me, but hopefully it resonates with the hardcore gamers!

Black Forest Games, apart from its witty press releases, is an independent game studio that was established in 2012. The studio’s HQ is in Offenburg, Germany. You can find out more here.

Diesel is a well known mid-end clothing label, and sells its goods across the world. Not a brand you would typically associate with gaming!

Diesel

Diesel, a brand you would ordinarily associate with gaming?!

Matter of fact

Diesel S.P.A. owns two EUTMs for DIESEL, which gives the brand protection across all 28 Member states for goods like clothing, shoes and accessories, but surprisingly also covers things like electronic games, game systems, DVDs and computers among others.

Black Forest Games applied to register DIESELSTÖRMERS as an EUTM in April 2014 for goods including DVDs and CDs for computer or video games. The studio also made it clear that their DIESEL reference was to the fuel, and not an ode to fashion in any way.

Diesel opposed this application in July 2014 on the grounds that allowing the application would create a strong likelihood of confusion between its DIESEL mark and the DIESELSTÖRMERS mark.

Confusing

Diesel opposed the DIESELSTORMERS application on the grounds of likelihood of confusion with its well established brand

Black Forest Games expected to be able to settle amicably with Diesel as DIESELSTÖRMERS would not in any way relate to the main wares under the Diesel brand. However, Diesel turned out to be a tough cookie and decided to formally continue with the opposition.

Decisions decisions…

The EU IPO (the regulatory body governing EUTMs) agreed with Diesel. Black Forest Games’ application was rejected. The grounds the EU IPO referred to in its decision were:

  • The goods Black Forrest Games applied for were identical or similar to Diesel’s registered goods.
  • The marks were visually, aurally and conceptually similar based on the use of the word DIESEL in both.
  • The overall impression of the sign may have led the public to believe that the goods came from the same company, or from a linked company.
Similar

Far too similar for the EU IPO’s liking!

FTL verdict

This case is a timely reminder that trade mark oppositions are fought on the basis of the goods and services for which the earlier mark is registered, not just those goods and services for which it is used.

In this case Diesel was successful because its trade mark registrations covered computer games, even though its reputation is as a clothing brand. This is why it is so important to have professional trade mark clearance searches carried out before you decide to adopt a new brand.

Pacman

Who would’ve thought, Diesel games!

Since the decision, Black Forest Games has re-branded the game in question to ROGUESTORMERS – catchy!

Until next time it’s over and out. I’m off to brush up on my FIFA skills…

Hey! Hands Off My IP! (Patents)

Have you designed the next influential thing in fashion? You might want to patent it…

Patents can be used to protect inventions. With wearable technology on the rise, patenting enables inventors to stop third parties from using their invention without permission.

Fashion bubbles New York

Wearables, like those displayed in the Fashion Bubbles exhibit in New York, are becoming ever increasingly popular, leading to a rise in patent applications!

“Perfect solution” you say? Hold your horses, there are strict requirements on what you can and can’t patent and this post will take you through those hurdles. Also, applying for a patent can be time-consuming and expensive. Doesn’t sound too appealing does it? Well the good news is that the benefits can outweigh the negatives, which this post seeks to explore…

Jump those hurdles

Patents are only available if you have invented a new product or method for doing things. In the fashion industry, this may be a design feature of the garment or a technical feature, such as drag resistance technology, for example.

Patent plate from 1879

Patents are a long established form of intellectual property protection…check out this patent plate from 1879 – retro!

One of the earliest examples of patenting in fashion technology is by Danish company Novozymes which revolutionised the traditional use of stones to create stone-washed denim effect by utilising enzymes and microorganisms to create the exact same effect on jeans. Other examples of patenting being used to protect fashion inventions include products such as Speedo’s FASTSKIN FSII swimsuit fabric and Geox’s footwear technology.

The invention itself must be new, inventive and be capable of manufacture, but what does this mean?

  • New? There must be no public disclosure prior to putting through a patent application. Fashion tech company XO once deliberately designed wristbands that detect user’s emotions to not work outside the auditorium they were in. This prevented the product from becoming accessible to the public in any way, which would have affected their patent application.
  • Inventive? The invention must not be obvious to another person skilled in fashion design.
  • Commercialisation? The product should have the ability to be made in any kind of industry.
Brand new

Gotta be brand new baby!

This means that aesthetic creations, designs or logos, such as the iconic Louis Vuitton symbol, cannot be patented. Instead, a trade mark application could be pursued. For more info on trade marks, see my post on trade marks in the “Hey Hands off my IP!” series here.

Another often over-looked point is that it’s not usually possible to patent software. Software is protected by copyright in the UK. Here’s some more information on copyright from the series.

Sounds great – my invention fits the bill! How do I register a patent?

This is where the fun begins! Unlike copyright, patents need to be registered. Applications have to be made to the Intellectual Property Office (IPO) in the territory or territories in which you want patent protection (usually wherever you are trading) and will require the following details, among others:

  1. a written description of the invention;
  2. drawings;
  3. claims that precisely set out the distinctive technical features of your invention; and
  4. an abstract that explains all of the important technical aspects of your invention.
A lot of 500 to 700 nm of exquisite light strewn across a pixelated matrix in linear crisscrossing fashion for your optical eye's delight and your mind's eye's respite

Fash tech’s 700m of exquisite light sewn into fabric for the eye’s delight!

Once the application has been processed, the IPO compiles a search report to investigate and assess if the invention is new and inventive, which can take up to 6 months! If all of the formal requirements are met, the application will be published approximately 18 months after filing.

Unfortunately it doesn’t end there…

Patent pending

It’s a long old process, so be prepared to wait!

Within 6 months of publication, more forms will need to be submitted along with an additional fee requesting a substantial examination for any changes required and this is reported back. If all of the application requirements met, the IPO will then grant your patent, publish your final application form and send you a certificate. Hurrah!

How long does a patent last for?

Patents can be granted for up to 20 years, but have to be renewed regularly during the 20 years, incurring a further fee! The first renewal is due 4 years after the date the patent was filed, and then annually. However, as always, there is a price to pay. This ranges from £70 for the first renewal to £600 for the 20th year!!

Wow, that sounds like a lot of effort – why bother with all this hassle?

Although the process to obtain and maintain a patent is long and expensive, with the right product, it is a great tool and can provide many benefits to those looking to generate a long-term investment return.

INTIMACY is a fashion project exploring the relation between intimacy and technology

INTIMACY is a fashion project exploring the relation between intimacy and technology. These Smart fabrics turn transparent when worn in close proximity to another person  resulting in feelings of an intimate nature! Yikes!!

In a fast-changing industry such as fashion where trends change season-by-season, it may not always be appropriate to register a patent and another form of IP protection may be better. However, with more and more start-ups looking to combine fashion and wearable technology, patenting could be very beneficial as this industry increasingly becomes mainstream, especially to prospective businesses or investors.

Patenting an invention gives you a monopoly right over your product. The mere existence of a patent application can also deter rival businesses from patenting a similar piece of technology.

Got my patent, now what?

It is your responsibility to police any unauthorised third-party use of the invention where they have manufactured, sold or imported it, not the IPO’s. It may be advisable to set up a watching service so you can keep an eye on any newly filed patent applications within the area of your invention.

Patented 1923

Keep a watch out for any potential infringements of your patent – it’s your responsibility, not the IPO’s!

A notable example of patent infringement in the fashion industry was when global retailer H&M infringed the ‘coveted bra technology’ of UK manufacturer Stretchline Holdings in a multi-million pound dispute. H&M sold bras using Fortitube technology without obtaining a licence from Stretchline Holdings. Tut tut!!

This goes to show the importance of having clearance searches carried out before applying to register a patent and also monitoring any future patents – not doing so could lead to a legal nightmare, which no one wants!

3D printing by Novabeans India 2

3D printing is also on the rise in the fashion industry – yet another form of fash tech!

Top Tips before applying for a patent?

Research, research, research – if the invention is not novel, inventive or capable of being manufactured, then the patent application will fail and your money will be wasted. Research online and through the IPO’s published patents catalogue to ensure there is nothing similar within your industry. This will not only help to ensure your invention is new, but will also ensure you don’t infringe anyone else’s patent rights.

Keep it a secret – confidentiality is crucial if a patent application is being considered. If your invention has been made accessible to the public in any way, this could seriously sabotage your application.

Secret

Ssshhh! It’s a secret – don’t spill the beans to avoid having your patent application declared invalid!

Be prepared for commitment – once your invention has been patented, it is important to analyse whether renewals are necessary and to monitor potential developments or inventions within your industry.

For more information on patents, feel free to contact me!

Naughty Gucci!

FTL’s newest post features a recap on an interesting US copyright infringement issue. This involved super-brand Gucci and occurred during a showcase of its Spring/Summer ‘16 collection.

The grudge arose when Gucci’s models walked down the catwalk in New York wearing golden nail rings highly similar to those designed and created by jeweller Bijules.

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Gucci’s Spring/Summer 2016 show

All about nail jewellery

Bijules is a famous jeweller renowned for its signature nail rings, with ambassadors such as Rihanna and Beyoncé flying the flag for the brand.

As we know from the last “Hey! Hands of my IP!” post on copyright, which you can find here, unlike copyright protected by English law, copyright in the US is a legally registerable right.

Bijules protected its copyright in the ‘Bijules Serpensive Nail Ring’ and ‘Bijules Serpensive Nail Ring II’ by registering them with the US Copyright Office in 2007. To view the registrations, type “Bijules” into the search box of this link.

Bijules 1

Shock horror! One of the fashion big boys ripping off an up and coming accessories designer – think of the publicity Kim!

Bijules bites back

Bijules founder, Kim Jules, stated that she may consider bringing proceedings against Gucci for copyright infringement following their use of the nail rings and commented:

“While it is an honor to be knocked off by Gucci, they have all of the resources to create something unique; instead they went back to something that’s steadfast and iconic of my company and that is unjust. If Gucci sells those nail rings to stores, those stores are going to believe Gucci made them and not me, and that is not a fair statement.”

Gucci 2

Although his designs are beautiful, Gucci’s creative director Alessandro Michele is under fire for allegedly copying the New York based designer, Kim Jules

Jules also pointed out that Gucci Creative Director, Alessandro Michele, was aware of Bijules and their nail rings.

Here’s an example of the original Bijules designs:

Bijules 2

The Bijules original…

and here’s an example of Gucci’s later versions:

Gucci rings

…and a highly similar Gucci rip off!

Too close to warrant coincidence methinks!

A slap on the Gucci “Bijuled” wrist?

To date Kim Jules has not brought formal proceedings against the Italian fashion power house, and there doesn’t appear to have yet been word on whether Gucci will be making the nail rings available for retail sale.

FTL comment

Perhaps Gucci has taken note and won’t be progressing its “Gujuled” nail rings! Perhaps Kim Jules doesn’t think pursuing this would be commercially worthwhile…

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Gucci showcasing its accessories at Milan Fashion Week – S/S16

In any event, this is a great reminder that you should never ever try to pass off another’s design as your own. You will be found out!

A tut tut to Gucci who should know better!

Changing the Face of Fashion Week

With shows for AW16 fast approaching, this week’s post looks at the changes in store for Fashion Week and we mention the rebellious stance taken by Burberry – we love a non-conformist!

The BFC

The British Fashion Council is keen to increase consumer engagement during London Fashion Week. As part of their strategy the BFC has partnered with Ocean Outdoor, a media company that specialises in digital billboards.

LFW1

No longer for the elite, the BFC wants to make Fashion Week much more inclusive!

Inclusive Brits

Next week’s LFW shows will be streamed live to the general public via 60 outdoor screens. These will be located not just in London but across the UK with the aim of reaching 35 million people. This is nothing new to Ocean Outdoor, which broadcast the AW15 Hunter show and introduced the UK’s first shoppable billboard for Topshop a year ago.

The BFC has also teamed up with sponsor American Express, to enable speakers such as Gareth Pugh and Sølve Sundsbø to engage with all those hungry for some Fashion Week action!

There’s even a series of podcasts from Topshop

Topshop alone has made huge efforts to connect with its customers and is showcasing a podcast series featuring NeGen designers such as Ryan Lo and Danielle Romeril, who will talk about what has inspired their recent work – check it out!

LFW3

Wonder if the back-stage happenings might eventually become privy to the social eye!?

NYFW v LFW

Compared with the big apple, which has been selling fashion week packages in excess of $5,000, London wants to give people outside of the fashion industry an opportunity to experience shows first hand. Designers such as Emilia Wickstead and Holly Fulton are to showcase their wears to consumers on a non-selective basis. In addition, there’ll still be lots of Fashion Weekend tickets available to the general public from as little as £20 – you can’t say fairer than that!

Rebellious checks!

Burberry1

Burberry likes to go-it-alone. Along with Tom Ford, the brand is leading the way for fashion’s future!

Interestingly, the likes of Burberry, Tom Ford and Vetements have declared they will no longer conform to the traditional fashion calendar, with Burberry and Tom Ford releasing new-season items for sale immediately after the catwalk and Vetements showing its collections in January, well before the customary first shows of Paris Fashion Week.

A Single Man1

We couldn’t have a reference to Tom Ford without paying homage to the amazing film – A Single Man. The epitome of male classic style!

FTL verdict

So what’s going to happen to the fashion industry over the coming years? Will we continue with the traditional catwalk system, or will we move further into a more consumer-friendly showcase, perhaps via social media? Will the BFC’s consumer fit and individual brands initiatives break the rules of the customary fashion calendar and therefore open the floodgates to those wanting a slice of Fashion Week? Who knows, but perhaps we’ll have a better idea once the curtain falls on the AW16 shows.

Watch this space…

FTL Event – All you need to know about IP

Roll up roll up, here’s an event you just can’t afford to miss!

Ever wondered what intellectual property rights you might own and how to protect them? Bamboozled as to what intellectual property rights actually are and how they might be valuable to you? Or even wondered what all of the fuss is about and why people like me bang on about intellectual property rights so much?! Well look no further…

Next week I’ll be giving a free training session on all things intellectual property related at We Work in Soho, London on Tuesday the 16th February starting 6pm sharp.

The event is hosted by Osmond Desilva of Tech City Coffee and having been to many of Osmond’s events in the past, this is one not to be missed!

Old Soho

Throw back to the Soho streets of yester-year!

Here’s a comment from Osmond giving an insight into what Tech City Coffee is all about and how it could benefit you:

“Tech City Coffee is a provider of quality events to the burgeoning tech centre in London. The focus of each event is to help start-up founders and teams  with their business development and management needs in the format of an educational seminar, followed by networking.

The “Intellectual property for start-ups” seminar is aimed at educating founders on how they can protect their intellectual property rights.”

As homage to the great district of Soho the images in this blog post give you an insight into FTL’s favourite Soho haunts – check them out!

Stairway to Vintage - Beyond Retro

Stairway to Vintage – Soho’s Beyond Retro

Back to the subject at hand…

Join Louisa Dixon and me, FTL, for a talk covering IP basics for start-ups. We’ll be focusing on:

  • patents;
  • confidential information;
  • design rights;
  • trade marks;
  • copyright;
  • database rights; and
  • moral rights.
Bar Italia 2

The famous Bar Italia, a Soho institution since 1949!

We’ll also be asking for audience participation to guess what IP rights are in a well known tech product at the end of the presentation to see if you’ve been listening! If you’re lucky, there might be some edible prizes on offer!

Ronnie Scott's

Always great for a late night Jazz session

So pop down to We Work in Soho on Tuesday the 16th February at 6pm to hear all about IP rights for start-ups.

There’ll also be a chance to network with other like-minded delegates (75 of whom have signed up already) and plenty of opportunity to speak to Louisa and me afterwards if you have any burning IP related questions.

Bar Termini Soho

Bar Termini, serving the best espresso and cocktails around, a fine mix!

To book your free place on the event click here.

Hope to see you there!

I Love Soho

We do indeed!

Until Tuesday, over and out, FTL.

Hey! Hands off my IP! (Copyright)

As promised, FTL is continuing with the “Hey! Hands off my IP!” series of blog posts. The first post in the series was on trade marks, you can access it here. Next we take a look at copyright.

It’s a common error to mistake copyright as a registerable right and get it confused with a trade mark. This piece aims to demystify the differences, provide greater clarity on copyright and explain why it’s a useful tool for those in the fashion/fash tech industries.

 

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Protect your designs and avoid copyright infringement by reading on…

What’s copyright?

Contrary to some general public perception, copyright cannot be legally registered in the UK, which is one of the key differences often confused with a trade mark.

Recently when listening to the radio (yes I’m a retro gal!), I heard numerous presenters assuming that certain objects, lyrics and recipes need to be registered to attain copyright. WRRRRONG!! This really infuriates me…

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Glued to my radio!

Copyright automatically arises on the creation of a Work. An idea alone cannot generate protection, the idea must be Recorded to become protectable under copyright. The Work must also be Original.

What does it mean to be a Work, Recorded and Original?

A Work: to be classified as a Work, the piece must fall within one of the following categories (for the legislation buffs out there, the relevant statute is here):

• a literary, dramatic, musical or artistic work;
• a sound recording, film or broadcast; or
• the typographical arrangement of a published edition.

For those in the fashion industry, this could include sketches of new clothing, handbag designs, shoe drawings, photographs of mock-ups or photos of the final product for example. However the garments themselves would not generally be protected by copyright, as it would be hard to drop them into one of the above categories.

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Copyright would exist in these very designs!

It’s worth noting that in other countries, garments can be protected by copyright due to their more openly drafted laws on copyright. This is the case in France, Germany and the US and was how Bijules could register its nail ring for copyright protection in the US.

Fixation: A further hurdle to leap before copyright protection applies is that the Work must be fixed. This means the literary, dramatic, musical or artistic work, for example, must be put “in writing or otherwise” (section 3(2), Copyright designs and Patents Act 1988, or CDPA for short!).

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“Record” everything to achieve fixation!

Originality: Finally, the work must be Original! It’s no good copying someone else’s work and then claiming copyright in it – that won’t work!!

Interestingly, it’s not necessary for the whole piece to be original for copyright to exist. Generally, the level of originality required in the UK is low; for example, copyright in calendars and competition cards have been accepted in the UK.

For fashion photographers, originality of photographs has raised questions, but European law states that:

“Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected… “

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Photographs are able to achieve copyright protection. Follow the steps outlined above to ensure they’re safe!

Who owns copyright?

Normally the owner of copyright within a Work will be the creator. However Works created in the course of employment by an employee will usually be owned by the employer, due to express terms in the employee’s contract.

Also, where a piece is commissioned, let’s say Vogue UK commissioned the famous milliner Philip Treacy to create an exclusive design as part of the 2016 100th year anniversary, it’s unlikely that Vogue would fail to formally contract with Treacy to secure Vogue’s ownership of any copyright in the design. So here, the commissioning party will typically own the copyright.

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Philip Treacy’s amazing creation for the late Alexander McQueen’s Spring/Summer 2008 collection. Wonder if Treacy was commissioned by McQueen and if so, who owned the copyright!?

How long does copyright last for?

Copyright exists from the moment a work has been created. The duration of this depends on the type of work created, by way of example, an artistic work affords protection for 70 years from the death of the author/creator.

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Vogue is celebrating its 100th year this year! Continuing the theme, copyright even exists in these vintage Vogue covers dating all the way back to 1916, provided the date of the author’s death was not before 1946 of course!

What rights does copyright give the owner?

The copyright owner has the exclusive right to do the following with the Work:

• copy it;
• issue copies to others;
• rent it out;
• perform, show or play it in public;
• communicate it to the public; and
• make an adaptation.

Are any rights reserved for a creator who may no longer own the Work?

The author automatically acquires a number of moral rights in relation to their Work including rights:

• to be identified as the author;
• to object to derogatory treatment of the Work; and
• not to have a Work falsely attributed to him or her.

What happens when someone breaches copyright?

Copyright is infringed if, without the permission of the owner, someone does, or authorises another to do, any of the acts that are exclusive to the copyright owner as outlined above.

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Universal sign for copyright. Stamp on all of your works capable of copyright protection to warn off any copyright thieves!

This can apply to the whole of the Work or only part of it and relates to direct or indirect infringement.

Round up

Being an automatic right, and not one that can be legally registered in the UK, copyright can often be difficult to prove. For example, a startup fashion business may create a wonderful design, which is then totally ripped off by large corporate retailer. The startup may not have filed evidence of its creation, which would prove originality prior to the date the corporate giant made a copy. The startup would therefore find it difficult to its ownership of the Work.

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Although your studio may only have humble beginnings, be sure to record your original works to benefit from copyright protection!

What can be done?

A way around this is to record and keep dated copies of your file drawings, plans and photographs. This will then go some way to prove you are the owner and that the Work does not belong to those trying to steal your work!

Copyright can be mind-boggling and legal advice often needs to be tailored on a case by case basis. If you’ve hit a copyright wall and don’t know where to turn, contact FTL via the contact me page.

Until next time…