European Union: Walking The Sustainable Catwalk: Fashion And Designs

Last Updated: 19 September 2019
Article by Jordan Davies

London Fashion Week is almost over, the first shows for the Spring/Summer 2020 collections commenced on 13th September. Many fashion aficionados waited with bated breath to see next season's upcoming trends on the catwalks, as well as seeing which bloggers and celebrities would make it to the highly coveted front rows.

London Fashion Week is an important event for both well-established and emerging brands. Often, trends seen at such prestigious events are made into look-a-like products by high-street stores for a fraction of the price, sometimes in unethical circumstances. Whilst fast fashion, defined as "trend driven, low cost clothing manufacture" , shows no sign of slowing down, there have been an increasing amount of calls from entities such as Oxfam to make the fashion industry more sustainable. Oxfam, for example, is launching its #SecondhandSeptember event this year for the first time. Other innovative concepts in the fashion industry include clothing made from recycled materials and the use of genderless clothing in order to promote sustainability . This movement towards more sustainable fashion has become known as "slow fashion", i.e. "designing, creating and buying garments for quality and longevity."

But what does increasingly sustainable fashion mean for design rights?

UK and EU unregistered designs are some of the most important IP rights within the fashion industry. UK unregistered design rights arise automatically for a duration of up to 15 years from the date of recording or creation of the article, provided that the designs are new and not commonplace. They cover the shape or configuration of a product and may apply to the whole or part of a design. An important limitation is that the UK right does not extend to surface decoration.

EU unregistered design right protects the lines, contours, colours, shape, texture, material or ornamentation of the product for a period of 3 years from the end of the calendar year in which the design was first disclosed within the EU, provided that the design is new and has individual character. EU unregistered design rights have proven particularly valuable in the fashion industry since garments and accessories often feature surface decorations in the forms of repeated patterns or prints. An example of this is Cath Kidston frequently using repeated patterns to decorate its clothing, accessories and homeware.

Given their relatively short protection period, unregistered design rights lend themselves to fast fashion. Generally speaking, fashion trends will only remain popular with consumers for a short period of time (usually a season lasts around 6 months). Unregistered designs arise automatically, meaning designers obtain protection for their designs immediately at no cost, and can start enforcing their rights almost immediately afterwards. For any designs that prove to be particularly popular, designers can make use of a 12 month grace period to choose whether or not to register the design either in the UK or the EU, so long as the application to register takes place within 12 months of the first public disclosure of the design (e.g. at a fashion show or in a lookbook).

As we move towards a more sustainable way of living, including the way in which we purchase clothes and accessories, the scope of unregistered designs may not be long enough to protect designers from copycats. Registered designs may, therefore, become more popular with designers looking to protect key pieces of their collections which prove both popular amongst consumers and have longevity in the fashion world. EU and UK registered designs are available for designs which are new and have individual character, and last for a period of up to 25 years. Upon leaving the EU, the UK will ensure that holders of EU Registered Designs have a comparable UK right, even if there is no deal.

Design applications are relatively inexpensive to file, meaning that they are a cost-effective way for designers to protect their creations. Design registrations offer a 'monopoly' right, which means that the owner of a registered design can stop others from importing and manufacturing goods which create the same overall impression on an informed consumer. Further, with a registered design right there is no onus on the proprietor to prove copying as part of infringement proceedings, making them easier to enforce than unregistered rights. Designers also have the option of deferred publication, allowing designers to apply for protection whilst keeping their designs secret for a period of up to 30 months after filing. This enables designers to hide any forthcoming key pieces from potential competitors. Lastly registered designs are not subject to the requirement of first disclosure in the UK/ EU, as is the case for unregistered rights. They are therefore more accessible to applicants from outside the EU.

In summary, two evolving themes emerging in the fashion industry are fast and slow fashion. As well as spying the latest fashions, we will be keeping a weather eye on how designers tackle recent changes in the industry and whether registered designs will soon start headlining the sustainable catwalks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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