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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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! (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…

Louis Vuitton’s “Damier” in the Dog-House

Louis Vuitton has lost its Trade Mark protection for the famous chequered pattern, the Damier.

In addition to its “LV” monogram, the French fashion giant Louis Vuitton has been using the brown and beige check – known as the Damier Ebene – since 1888. It successfully registered a European-wide Community Trade Mark (“CTM”) in 1998, and for the cream and grey Damier Azur ten years later. However, Nanu Nana, an online gift item supplier, filed a legal claim to remove protection for these patterns in 2009.

The Damier Azur and Damier Ebene, side by side

The Damier Azur and Damier Ebene, side by side

Nanu Nana argued that Louis Vuitton could not legally protect the Damier pattern because it was:

  • descriptive;
  • devoid of distinctive character;
  • an established practice of trade; and
  • consisted exclusively of a shape giving substantial value to the goods themselves.

If a Trade Mark is found to be any of the above, it will be refused protection under the Community Trade Mark Regulations (Article 7). In eight of the 27 European Union countries, Louis Vuitton could not prove it had acquired distinctive use of the Damiers. In other words, it could not prove that the Damier was distinctive enough for people to automatically associate it with its origin, being the Louis Vuitton official brand. The Courts therefore cancelled the Trade Mark protection of both the Ebene and Azur Damiers.

After a few rounds of appeal by Louis Vuitton, it all boiled down to the decision of the General Court. The decision was handed down in April 2015 and said:

  • The marks lack inherent distinctive character. They are too basic, too common and have a long-standing link with leather goods for which they were registered.
  • The evidence provided by Louis Vuitton did not prove distinctive character throughout the European Union (in all 27 countries).
  • Photos of celebrities holding Louis Vuitton merchandise did not prove the brand had acquired a special or well-known distinctiveness through use.
Just because celebrities - like supermodel Miranda Kerr - use a particular product, doesn't mean that the design can be protected under law!

Just because celebrities – like supermodel Miranda Kerr – use a particular product, doesn’t mean that the design can be protected under law!

Without a protected Damier, Louis Vuitton will now have a harder time going after counterfeit products.

What could the brand have done differently?

Louis Vuitton’s crux has been lack evidence. Had the brand provided sufficient proof, showing acquired distinctiveness of the Damiers in every EU country, perhaps the Damiers would still be protected. Louis Vuitton now has the opportunity to appeal to the Court of Justice for the EU, which is a route the luxury designer brand will likely take to protect the patterns. Let’s watch this space!

What does this case teach us?

  • A mark must be distinctive throughout each and every one of the EU countries in order to be granted an EU-wide protection.
  • Even marks that have been used for over a century can be vulnerable to invalidity claims. The key to protection, as always, is evidence. If sales, PR and marketing data is maintained for all EU territories, distinctiveness and use are easier to prove.
  • Trade Mark erosion is when a trade marked name or pattern becomes generic (think “Hoover” or “Kleenex”). You can help prevent this with savvy marketing, to include identifying and adding a durable distinctive element to the core design. This will help to withstand opposition or cancellation proceedings from competitors.
  • Where a Trade Mark constitutes a valuable asset, businesses should always have a strategic approach to registering multiple marks in their core markets.