IPR-rights of fashion business
This article is published in Modin, professional magazine of fashion business.
IPR abbreviation comes from the words Intellectual Property Rights. The Finnish counterparts are intangible property rights and immaterial rights. In this article, I review intangible/ immaterial rights through the following main groups.
Industrial rights (patent, utility model, trademark and trade dress) protect, manage and commercialize the results of the development work. The holder of rights can both prohibit others from using the subject of the right and issue operating permits (licenses) for the economic exploitation of the object.
Copyright comes as a result of creative work. The copyright law defines the subjects of the legal protection and the extent of the protection. In principle, the holder of copyright has the exclusive right to dispose of the economic exploitation of his rights.
Trade secrets are also covered by immaterial rights. Trade secrets can be protected by non-disclosure agreements. It is important to take into account the terms of confidentiality, for example when drawing up the CEO, shareholder, labor, subcontractor and reseller agreements.
In the fashion industry, the most prominent way to protect rights is to register trademarks. The trademark can consist, for example, of words, patterns, slogans, acoustic signals, or a combination of these. Typically, the trademark protects the figurative mark formed from the company’s name and, for example, the name given to the collection.
By means of a trademark, the company distinguishes its products and services from similar products and services of other companies. Making products known, more generally branding the business, takes a lot of time and requires significant investments. Without well-designed and implemented registration of rights, the financial and intellectual investment will easily be decayed by people exploiting the ready-made reputation of the companies. Trademark registration in all the countries that are targeted for marketing is the only way to effectively protect oneself against brand exploitation in the area.
Trademark protection in all EU countries is available with one registration by EU Trademark (EUTM). However, EUTM must be distinctive throughout the EU.
If a member state has a reason to consider the sign lacks distinctive character, the entire EUTM application will be rejected. However, in such a case, the applicant has the right to convert his application into national applications in the desired EU member states. Cost savings will be significant if EUTM preconditions are met.
Of industrial rights, protection of designs is, also, a possible way to protect the rights of fashion industry products. The right to a design protects the new design, for example, against imitations. The object of protection of designs is the appearance of the product or a part thereof. Design right can be granted if the design is novel and unique. The individuality of the design is assessed on the basis of the overall impression. The overall impression has to be sufficiently separated from the overall impression of the designs that have already become public. It is not possible to summarize the many criteria of registering a design right in this article. One way of exploring the possibility of design registration is to browse the Design Database maintained by the Finnish Patent and Registration Office and to search for registrations that are comparative to your own products.
Products of fashion business are rarely protected by copyright. To get copyright protection requires that, for example, the garment is the result of independent and original creation work. Copyright protection mainly concerns production similar to arts & crafts.
In its given statements, the Copyright Council has held that, for example, certain knit garments embellished with animal figures can have copyright protection, but the essential parts of some wedding and evening dresses were not considered to be protected. Copyright protection may therefore be possible for some of the product areas of the fashion business, but its significance is likely to be considerably lower than trademark and design protection.
Fashion business, as all other forms of business, is increasingly associated with e-business. For example, online advertising and commerce uses a lot of purchased copyrights such as photographs, video clips, music, graphics, and so on. The utilizing licenses of such rights are important to be planned and agreed carefully. Deficiencies in coverage of the licenses may lead to major changes in marketing materials as well as to the obligation to pay the copyright holder compensation and damages.
All the stages of fashion business joints with a number of important business knowledge and know-how, concealing of which from third parties secures business continuity. Non-disclosure agreements can also help to protect knowledge and skills from leaking to the use of competitors.
Whether the IPR rights are company’s own, or through licenses in the use of the company, they provide an opportunity to effectively protect yourself against a variety of thieves of reputation and fame.