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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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.

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.

Gucci 1

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…

Gucci 3

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!

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.

 

2

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…

3

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!).

5

“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… “

6

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.

8

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.

1

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…

Festive Glitz, Glamour & Italian Made Shoes!

This week’s post sees Isabelle Bennett report on a Christmas fashion event hosted at Taylor Vinters’ office on the 33rd floor of Tower 42 in London, featuring comments from the organiser: Taylor Vinters’ employment law partner, Anita Rai.

For an overview of the event including an insight into some new exciting brands promoted by Kari C and The Collective, along with some last minute Christmas shopping inspiration, read on!

Kari C & The Collective

Taylor Vinters recently hosted a Christmas festive social event at its London office for a new and exciting client, Kari C.

Kari is a luxury shoe designer who creates beautiful bespoke shoes and who also has a ready to wear range.

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Beautifully crafted bespoke shoes by Kari C

A range of existing and prospective clients and intermediaries, as well as some existing Tower 42 residents were invited along to the event.

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Luxury silk scarves by Sila Dora inspired by artists’ prints

There was a great show of  guests who were able to meet, network and speak to the designers about their products.

Attendees also had the opportunity to buy luxury goods (shoes, jewellery, perfume and skincare) from The Collective, which is group made up of new and exciting designers promoted by Kari.

Anita says

Anita Rai, who organised the event said…

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Anita Rai, employment law expert, who also has a shoe collection to die for!

“I met Kari at one of the events run by the Sorority and felt that we instantly clicked. I loved her story as to how she had gone from trader to shoe designer.

At Taylor Vinters, we love to support budding entrepreneurs and grow with them supporting them along their journey. We decided to co-host a festive drinks and give Kari and her fellow designers a chance to show case their products.

It was a lot of fun and (obviously to support the cause!) I just had to purchase a pair of her divine shoes too!”

Attendees included people from Brainjuicer, Accenture, Brooke Roberts, McCann Fitzgerald, Armour Risk Management, Menzies, Wilson Wright and City of London Corporation.

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A shoe view!

More on The Collective by Kari C

The Collective is a group of independent designers, skin care specialists and perfumers who are promoted by Kari C and whose products are stocked at her boutique in Beauchamp Place.  All products are of the highest quality and ooze luxury and class!

Evelin Vock

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Eye catching embroidery by Evelin Vock

Amongst the many talented and quirky clothing designers, was  Evelin Vock, a luxury women’s wear designer, whose brand focuses on outerwear.

Inspired by Nature’s beauty, no animal products are used in Evelin Vock’s designs, who is also an active supporter of PETA.  Using bright stitching and intricate unique designs, Evelin’s work is hard to miss!

Bruno Acampora Profumi

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Perfumery by Bruno Acampora Profumi, inspired by memories & experiences of countries, cities & cultures

As well as shoes, clothing and accessories, The Collective shows impeccable taste in beauty products.  Also attending the event at Taylor Vinters were perfumers Bruno Acampora Profumi.

Bruno uses his memories and experiences of countries, cities and cultures to produce beautiful fragrances, which are also stocked in Kari’s Beauchamp Place boutique.

Love Opulance

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Jewellery by Love Opulance

Love Opulence, a jewellery business inspired by the founder’s love for travel and fashion also came along to the event.  Love Opulence began life as a successful fine jewellery business in the depths of the Caribbean.

Paying close attention to detail, quality and finish, Love Opulence plays with colour, crystals, pearls and semi precious stones to bring to the table a range of stunning and unique jewellery.

FTL verdict

A great night was surely had by all. For further insight into The Collective’s designers as featured above, head down to Kari’s shop and check out the beautiful pieces showcased in store.

Thanks to our guest blogger Issy for her excellent report on the event and for the fab photos she snapped on the night!

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Issy Bennett, photographer, blogger and lover of a vintage handbag or two!

“SNAP!” Says Lacoste

Does anyone remember the kiddie card game SNAP!? Perhaps not if you’re a digital native – maybe it was just an 80’s thing!

Well all of this nostalgia got me to thinking about a recent trade mark opposition from Lacoste against Eugenia Mocek, Jadwiga Wenta KAJMAN Firma Handlowo-Usługowo-Produkcyjna (phew!), we’ll just refer to them as the Applicant to save space, for their application to register KAJMAN as a logo in the shape of a crocodile. Perhaps not a SNAP! But surely similar?

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SNAP! or just similar?

Background

Here’s what the earlier 2004 Lacoste Community Trade Mark looks like…

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Lacoste’s croc trade mark.

…and here’s the KAJMAN mark, which was applied for on 1st February 2007 for purses, handbags, leather goods, footwear, and clothing (amongst other things):

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The KAJMAN logo.

The Lacoste mark, funnily enough, was also registered for things like purses, handbags, leather goods, footwear and clothing (to name but a few goods).

I’m sure you’d agree that the goods for which Lacoste’s croc is registered and the goods which came under the KAJMAN application are extremely similar!

What happened next?

Not wanting to roll over on this one, Lacoste wrestled with the Applicant and opposed the KAJMAN application with full biting force in May 2008 on the basis that:

  • the co-existence of the two marks would be confusing to the general public, in that one mark may be confused with the other (Article 8(1)(b) of Regulation No 207/2009 for all you law geeks out there); and
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Creating public confusion!

A decision

What did the powers that be have to say about this SNAP! happy fight? Surprisingly the Opposition Division rejected Lacoste’s opposition saying the marks were visually and phonetically different, that they had low conceptual similarity and Lacoste’s mark wasn’t overly distinctive in nature. It was therefore decided that no likelihood of confusion existed.

It was also noted that Lacoste did not provide enough evidence to support its point on the KAJMAN mark taking unfair advantage of the earlier registered mark, therefore damaging the reputation of the Lacoste brand.

Decisions

Decisions…decisions!

Now, I know what you’re thinking, yes, they are extremely similar, and yes of course Lacoste should appeal this decision…

Let’s appeal!

Lo and behold! Lacoste did exactly that in December 2010.

The Board of Appeal partly upheld Lacoste’s appeal saying a likelihood of confusion existed in relation to leather goods, purses, bags, footwear and clothing. Hurrah, at long last, the Board of Appeal had seen sense! Or perhaps not…

The Board of Appeal went on to dismiss Lacoste’s view, agreeing with the Opposition Division, that allowing KAJMAN to be registered would create an unfair advantage and potentially cause damage to Lacoste’s brand. So only half of the battle was won!

Lacoste 1

Not quite game, set and match!

Recent news

On the 30th September this year, after further Lacoste and KAJMAN snipes, the General Court said that there was a likelihood of confusion between Lacoste’s croc and KAJMAN in relation to those goods listed above. They based their decision on the following factors:

  • the signs were conceptually similar;
  • the Lacoste mark had acquired a highly distinctive character for leather goods (class 18), clothing and footwear (class 25) through use (finally the Court is in agreement!); and
  • there was a likelihood of confusion that the public would believe that the goods had come from the same organisation, or were at least linked, with regards to classes 18 and 25.

The Court did however note that there was low visual similarity between the marks aside from the fact both represented a crocodile. Similarly, the marks were not held to be phonetically similar.

What does this tell us?

Despite the lack of any real visual similarity between the marks, Lacoste had built up a significant reputation with regards to goods such as leather bags, and as such had acquired a distinctive character for these, but as always EVIDENCE OF USE IS KING!

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Always always ALWAYS remember to keep records of use!

The marks were also conceptually similar, based primarily on the fact they were both representations of a crocodile.

The FTL verdict

So reputation through use can ultimately be key, just ensure you keep this evidence stored for a rainy day and don’t fall foul of Lacoste’s initial error by not producing enough evidence in support of any oppositions!

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A Lacoste 1970s vintage original. because we love vintage!

Crocs away!

For more information on trade marks, see my last post “Hey! Hands off my IP (Trade Marks)” here.

HUGE thanks go to Laura Rose for her help researching this case and to Issy Bennett for her creative input!

Hey! Hands off my IP! (Trade Marks)

For the next few months, in-between the regular Fash Tech Lawyer news and gossip, I thought it might be useful for all of you budding designers out there hoping to turn your start-up fashion business into a fashion power house of the future, to list my top tips for protecting your intellectual property.

In this series of “Hey! Hands off my IP!” posts, I will give an insight into what IP rights are, how you can use them to protect your business and why you should!

These designers built their brands around their names, can you guess who they all are?

These designers built their brands around their names, can you guess who they all are?

IP – what’s all the fuss about?

Why do I think this is important? Well, being in the creative industry your most valuable assets can often be your intellectual property. What’s intellectual property I hear you cry?! A house of our own that us Londoners can only dream of? Nope! Intellectual property, or IP as it’s more fondly known, is a collection of intangible property rights that come about as a result of intellectual effort – so get those cogs turning! IP can be things like trade marks, copyright, design rights, confidential information, trade secrets and patents.

Trade marks

Fashion brands such as Chanel, Burberry and Louboutin all share something in common, their brands are king! So naturally they would want to protect them. One of the best ways to do this in the early stages, is to register a trade mark for your brand’s name and/or logo.

Be smart like these fashion power houses and be sure to protect your brand name and logo as registered trade marks!

Be smart like these fashion power houses and be sure to protect your brand name and logo as registered trade marks!

So what’s a trade mark? The terms “trade mark” and “brand” are often used interchangeably. Both can refer to a sign which distinguishes the goods, or services, of one trader from those of another. Trade marks are used to help customers identify goods or services as originating from you. A registered trade mark is infringed if it is used without its owner’s permission, so the owner of the mark has a monopoly over its use for the goods and/or services for which it is registered. This monopoly can be maintained forever!

Okay, so you’ve explained what a trade mark is. Why do I need one for my fashion business? 

Once you have decided on a name for your brand, protect it! It’s very tempting for competitors to start using a similar brand name to yours to try and ride off your success, particularly as your brand grows and becomes more successful. I wrote about the retailer VoQuE attempting to use VOGUE’s name on my last post here. Take a look for a prime example!

If I want to protect my brand’s logo, what should my first step be?

You’ll first need to see if there are any identical or similar marks to the name you are thinking of using. Although it’s perfectly possible to carry out a simple online search to see what’s out there, this might not catch everything. The best thing to do is to instruct a lawyer or trade mark attorney to carry out and report on detailed searches for you, known as Clearance Searches.

A clearance search needn't be long and winding! Enlist the help of a lawyer or trade marks attorney to set you on your way!

A clearance search needn’t be long and winding! Enlist the help of a lawyer or trade mark attorney to set you on your way!

What happens if I don’t carry out a search?

If you go ahead and use a name without first doing a clearance search, you can certainly run into problems. I’ve seen situations where businesses choose what they think is a unique name, only to be slapped with a nasty letter from someone who already owns that name! Or worse, they’ve been trading for a number of years, stacked up a tidy sum in assets, and the owner of the registered mark then sues them for infringement, and they lose everything.

What do I do next?

The next step would be applying! If you think here in the UK is your main market, but you hope to expand into other European countries and eventually the U.S.A. (for example), then think about applying for a Community Trade Mark (CTM) first and foremost. This will protect your brand in all 28 Member States and can be cheaper than registering your mark in multiple countries as and when you decide to trade there.

What if I start trading in different countries outside of the EU?

You will need to make separate applications for this and the hurdles for getting this through to registration in the U.S.A (for example) can be quite high! For instance, you will need to prove use or intent to use in the U.S.A. This can be quite difficult to do, but if you already have a national registration or a CTM, the hurdles can be a little easier to jump! What’s more, if you decide that within 6 months of your initial application, you are ready to take on a U.S.A. adventure, you will be granted what’s called a ‘priority period’ if claiming priority in your application. This means that when your U.S.A. application is approved and that mark registered, the U.S.A. mark will be deemed to have been registered from the date you initially applied for your CTM or national registration. Bonus!

Where will your trade marks take you?!

Where will your trade marks take you?!

What are classes?

Don’t worry, you don’t need to go back to school and take one – classes in the trade marks sense categorise goods and services for which the mark is registered. You will need to consider what goods and/or services, covered by these classes, you want to use your trade mark for. Typical classes for the fashion industry are class 25 for clothing footwear and headgear; and class 35 to advertise your goods for sale, but these are just a few. There are a number of classes available and a full list can be viewed here. Which classes you choose may largely depend on your brand, so always seek specialist advice from a lawyer or trade mark attorney before going ahead and selecting them.

How do I actually apply?

Most applications can be made online and there will be a fee to pay to the relevant IP office you are applying to. An examiner will then assess your application and if he or she is happy with it, will publish it for people to view and oppose (see warning above!). If you’ve had proper clearance searches carried out you shouldn’t have any oppositions and your trade mark will be entered on the relevant trade marks’ registry within a matter of months. Happy days!

Don't just stand around looking pretty like this Valentino model, get applying!

Don’t just stand around looking pretty like this Valentino model, get applying!

What’s a watch service?

All of this is no good if once registered, someone starts infringing your mark and you don’t pick up on it! For a small fee, most lawyers and trade mark attorneys will offer a watch service, where, by the power of highly intelligent software, any marks that appear online or that are applied for in territories of interest to you that are slightly similar to your mark will be reported to you. Well worth doing!

The moral of the story

Carry out full and proper clearance searches on any name you plan to use, protect your brand early on by applying to register a trade mark, and always keep a watch out!

Don't forget to keep a watch out!

Don’t forget to keep a watch out!

For more information on how to protect your IP, contact me!

Battle of the Cities – NYFW or LFW?

Only one more sleep to go until the 62nd London Fashion Week! This week’s FTL post features ones to watch for the London Spring/Summer 2016 collections and gives a summary of New York Fashion Week’s highlights. Which do you think will come out on top? LFW or NYFW?!

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Let the countdown begin!

Dig the new breed

London effortlessly challenges its rival global counterparts during fashion week, showing some of the most commanding creative flair in the world. Amongst its staple brands treading the boards, like Burberry and Christopher Kane, there is a new breed of designers, so fresh they only recently showed their graduate collections. Those that have attracted the talent-scouts graduated from Central Saint Martins just last year, such as South London-based Caitlin Price, who also won the Armani scholarship and Richard Malone (featured below).

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Great British heritage brand Burberry, showcasing a pastel inspired finale.

NYFW highlights

But who can argue with the feat of NYFW, closing today, which has generated 900 million dollars in revenue, drawing in over 200,000 people. Highlight of the week was the Oscar de la Renta timeless elegance show, which was the fashion power house’s second collection following the death of its founder. Pieces included Spanish-inspired suits, ball-gowns and cocktail dresses from its creative director, British-born Peter Copping. The designer used bold floral prints, crimson palettes, lavish lace and abundant ruffles to create a truly classic de la Renta collection. Lowlight, personally, was Kanye West for Adidas idly named “Yeezy Season 2”. The military-inspired assortment was made up of nude and neutral-coloured hoodies, bodysuits and loose-fitting trousers, which drew many parallels with his last collection. Not only has this all been done before, it was done last season by the man himself! Time to give up the game Kanye!

Oscar de la Renta

Classic de la Renta – pure poetry!

Topshop partners with Pintrest

This week in London we will see Topshop team up with Pintrest to launch “Pintrest Palettes”. The savvy high street store is renown for its social media campaigns. The partnership will enable UK and US Pintrest users to create a custom colour palette based on Spring/Summer 2016 key colours via Topshop.com.

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Which Pintrest colour palette will you be this season?

LFW ones to watch

There’s so much jaw-dropping talent showcased during LFW, but for me it’s the new kids on the block that can be the most inspiring. FTL’s “ones to watch” are:

Richard Malone, graduating from Central Saint Martins last year with a Bachelor of Arts degree in fashion, he has already attracted attention from the fashion industry’s big-wigs. In 2013 his graduate collection was supported by the Grand Prix LVMH scholarship and he will show his collection as part of the Topshop-sponsored Fashion East collective this week. The label’s aesthetic has to date stemmed from structured silhouettes with contrasting hound’s-tooth fabrics and bold stripes. Pieces in Malone’s graduate collection invoked a 70s vibe with both cropped and bell-bottom flares on show. I’m excited to see what delights the upcoming collection will bring this week.

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Good luck to our new-comers on their debuts, the Frow be with you!

This is the Uniform’s Jenna Young is a fine arts textiles graduate of London’s Goldsmiths University. She worked in the luxury textiles industry for three years before launching her own label in 2013. Young also worked in fashion styling, and it was via this experience that her designs came to the attention of British Vogue fashion director Lucinda Chambers. The designer will also début as part of Fashion East this week. Young’s signature style is luxurious fabrics, no doubt stemming from her background. I predict plentiful silk organza and natural fabrics.

Marta Jakubowski completed the Masters of Arts program at the Royal College of Art and has already worked with the likes of Alexander Wang, Bruno Pieters, Hussein Chalayan, and Jonathan Saunders before embarking on her own label last year. In December 2014, the designer was chosen to show her Autumn 2015 collection for the British Fashion Council’s NewGen scheme. Wide velvet and cotton trousers in bold colours have played a key theme in Jakubowski’s collections to date. I’m hoping for a clever use of fabric and texture in her Spring/Summer 2016 collection.

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A personal FTL favourite – the Matlock established John Smedley, here’s to the northerners!

The veteran luxury British brand, John Smedley, and a long-time love of mine, is finally launching an out-and-out women’s wear collection. This I have to say, I am very excited about! Pip Jenkins, head designer of the John Smedley women’s range, said the collection will include “a lot of lighter, sheer fabrics designed for layering, and cuts that feature wrap and split detailing designed to drape and flatter the female form.” A new direction for the staple knitwear brand, which I’m sure to be raiding the Brook Street store for post show!

FTL verdict

For me, London always comes out on top, perhaps I’m biased, perhaps I just think the standard is higher. If NYFW dropped the dead-wood and focused more on emerging innovative talent, rather than Kanye and his entourage I might have a different opinion.

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LFW SS16 kicks off on Friday 18th September leaving its old premises, Somerset House, behind to make a new home at the art-deco Brewer Street Car Park in Soho.

One thing’s for sure, London’s collective of burgeoning talent, both veterans and newcomers, are guaranteed to bring something new and exciting to the trends of Spring/Summer 2016. Let the count-down begin!