Trademark System in Uk For Fashion Brands

Introduction

The basic concept of trademarks is that it helps consumers to identify a certain product or line of items as belonging to a particular company.[i] Traditionally, trademarks were seen as helpful instruments for determining the origin of goods, and they received legal status as a result.

However, trademarks are legal entities in their own right, while brands are not. Trademarks may increase the value of a company’s brand and protect it. Some of the elements that may be used to convey values connected with a brand include the name of the font, design, colour, and symbolism. If you want your trademark to be memorable, it has to be instantly recognizable—and even eye-catching. Competitors may also seek to duplicate a product’s trademark if they attempt to replicate it. Not all product imitations entail copying trademarks, and in the same way, not all counterfeit trademarks are based on mimicking product imitations.[ii]

Additionally, the legal counterweights to increased protection under the existing system must be examined, as must the question of whether such an expansion provides enough opportunity for trademarks to be used as resources “for the building of identity and community”.

In EU there are three primary methods in which fashion sector goods might be safeguarded.

  1. Copyright
  2. Definition of Design
  3. Trademark regulations.

Fashion sector items may be secured by patent, which makes this kind of protection more appealing now that designers are using technology in their designs.

Community Design

A product’s appearance can be defined as “the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture, and/or materials”. It’s possible to think of an informed user in fashion as someone who is a final consumer of the product, a designer, a collector, or someone who has a great interest in fashion. Since a result, the uniqueness of fashion items must be highlighted, as inspiration is more permissible in this industry than in others.[iii]And the fact that the design may be protected for a maximum of 25 years from the date of registration of the design appears to be stressed in the text.

[Image Sources: Shutterstock]

Trademark 1

Unregistered Community Design (UCD) is also protected by European regulations, making it the greatest option for designers who want to preserve their work. In order to bridge the gap between copyrights and design protection for creative workmanship, British law served as a template for this method.

The licensee of a UCD does not have any legal protection against the independent creation of the same or identical design in the marketplace. Previously, Jimmy Choo sued a business for violation of its registered and unregistered design rights in a handbag, according to a reported example. Accordingly, the European Court of Justice concluded that the contested Jimmy Choo handbags were fake. High-end fashion brands may benefit from European legislation, as seen by this case. If this is the case, designers may utilise the legal safeguards afforded to negotiate out-of-court settlements.

Trademark Protection

An EU trademark can be created using any symbol or word that can distinguish one company’s goods from those offered by another, including names, logos, designs, colors, shapes of goods, packaging, or even sounds. This symbol or word can be registered in the European Union trademark registry in order to be used to distinguish one company’s goods from those offered by another.[iv]

 First and foremost, if a brand or business name has a unique character, it might be protected as a community trademark under this kind of law. Applicants for trademarks in this circumstance have the right to use the trademark for a period of 10 years, which may be extended for another 10 years or more.

The use of trademark protection does have significant limitations in these situations, though. In order to be protected by trademark law, a product or service must be distinguishable from others in the marketplace. The distinction between a red sole and a blue sole, for example, might be subtle in this situation. Four and a half the unique character, as perceived by the typical customer, may also be covered by trademark protection for other forms of decorations or constructions in which the brand has been employed.[v]

Scenario after UK voted to leave the EU

Designator names, logos and phrases may be protected by trademarks for fashion firms. This is a strong tool for protecting brand’s identity.[vi]It used to be possible for owners of EU trade mark registrations (EUTMs) to compel use of their mark across the EU. Trademarks may also be protected in the United Kingdom and the Isle of Man by using a separate UK registered trademark. There is a two-year grace period for businesses who haven’t yet registered their EU trademarks and wish to maintain their filing dates and priority dates until the conclusion of the transition period. The EU Intellectual Property Office (EUIPO) accepts applications for new EU trademarks at any time.[vii]

Because most fashion goods aren’t created in the UK, the UK stands to gain little from its present position. The TCA only applies to goods produced in the United Kingdom. Because of this, many fashion items exported to the EU are subject to tariffs. Registered and unregistered design rights may be used by fashion firms to safeguard their designs, which are embodied in drawings and prototypes

It’s too early to tell what will happen if fashion firms present their collections in the UK and EU on the same day, but it’s a good idea. However, it remains to be seen whether the greatest level of security can be obtained with only the initial online disclosure through social media or live streaming of runway events. This is a new area, and we don’t yet know the entire impact of the new regulations on unregistered design protection.

CONCLUSION

In the light of the above discussion, it can be inferred that a slew of court rulings points to the need of global legislation. One side has the well-known fashion corporations, who file trademarks for their product and prevent new companies from entering the market. However, the psychological acceptance of ‘inspiration,’ in this kind of business, is a huge difficulty. A fresh strategy to forcing laws to seek for new forms of protection in this field may be taken into account when considering the absence of standard protection for fashion products and the market’s worth.

To summarise, it is clear that the fashion sector is not subject to the jurisdiction of a single area of law. Fashion law primarily concerns an already regulated field of Community Design under Intellectual Property Law in the European Union (EU). Using a design that has been registered grants you exclusive access to it. There is no need to establish a new branch of law if we extend these restrictions to Unregistered Community Design. A new practical component has arisen as a result of this considerable influence on European law brought by the United States. Think of designers as an artistic group, like authors or movie producers. Perhaps we should construct not simply a new branch of law for them, but identify those rules that can be applied to them and call it “Fashion law”. As a result, we’ll be able to provide the creators a single, comprehensive protection. Hence from the discussion above, it is quite evident that the Trademarks Laws that were applicable in the United Kingdom and that will be applicable now since the exit of the UK from Brexit will furtherance of the interests of the fashion industry.

Author: Harshvardhan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

  1. David M. Adler, ‘Fashion Law – Protecting Brands and Designs’ (2013) 5 Landslide 21
  2. Sunila Sreepada, ‘The New Black: Trademark Protection for Color Marks in the Fashion Industry’ (2009) 19 Fordham Intell Prop Media & Ent LJ 1131
  3. Scot A. Duvall, ‘The Trademark Dilution Revision Act of 2006: Balanced Protection for Famous Brands’ (2007) 97 Trademark Rep 1252
  4. Seth DiAsio, ‘Fashion Has No Function: Diminishing the Functionality Bar to Trademark Protection in the Fashion Industry’ (2019) 38 Miss C L Rev 28
  5. Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ 92.”
  6. Teresa da Silva Lopes and Mark Casson, ‘Brand Protection and the Globalization of British Business’ (2012) 86 Business History Review 287.
  7. Dayoung Chung, ‘Laws, Brands, and Innovation: How Trademark Law Helps to Create Fashion Innovation’ (2018) 17 J Marshall Rev Intell Prop L [i]
  8. Joanna Buchalska, ‘Fashion Law: A New Approach?’ 15.
  9. World Intellectual Property Association, ‘Introduction to Trademark Law & Practice: The Basic Concepts : A WIPO Training Manual’. (WIPO 1989).
  10. ‘EU Trade Mark Protection and Comparable UK Trade Marks’ (GOV.UK) <https://www.gov.uk/guidance/eu-trade-mark-protection-and-comparable-uk-trade-marks> accessed 28 March 2022.
  11. “‘Registration Process’ <https://euipo.europa.eu/ohimportal/en/registration-process> accessed 28 March 2022.”
  12. ‘Changes to EU and International Designs and Trade Mark Protection’ (GOV.UK) <https://www.gov.uk/guidance/changes-to-eu-and-international-designs-and-trade-mark-protection> accessed 28 March 2022.
  13. ‘Brexit and Your Designs’ <https://www.twobirds.com/en/insights/2016/uk/brexit-and-design-implications> accessed 28 March 2022.
  14. ‘Pan-European Design Protection: Considerations For The Fashion Sector Post-Brexit -IntellectualProperty-European Union’ <https://www.mondaq.com/uk/trademark/1037338/pan-european-design-protection-considerations-for-the-fashion-sector-post-brexit-> accessed 28 March 2022.
  15. ‘ChangetoUnregisteredDesigns’ (GOV.UK) <https://www.gov.uk/guidance/changes-to-unregistered-designs> accessed 28 March 2022.
  16. ‘Designs in the European Union’ <https://euipo.europa.eu/ohimportal/en/designs-in-the-european-union> accessed 28 March 2022.
  17. Kate O’Rourke, ‘Impact of Brexit on Designs – an Update’ <https://www.mewburn.com/news-insights/brexit-and-designs-an-update> accessed 28 March 2022.

[i] David M. Adler, ‘Fashion Law – Protecting Brands and Designs’ (2013) 5 Landslide 21

[ii] Sunila Sreepada, ‘The New Black: Trademark Protection for Color Marks in the Fashion Industry’ (2009) 19 Fordham Intell Prop Media & Ent LJ 1131

[iii] ‘The Devil Wears Trademark: How the Fashion Industry Has Expanded Trademark Doctrine to Its Detriment’, JAN 17, 2014, 127 Harv. L. Rev. 995 <https://harvardlawreview.org/2014/01/the-devil-wears-trademark-how-the-fashion-industry-has-expanded-trademark-doctrine-to-its-detriment/>

[iv] “Teresa da Silva Lopes and Mark Casson, ‘Brand Protection and the Globalization of British Business’ (2012) 86 Business History Review 287.“

[v] Joanna Buchalska, ‘Fashion Law: A New Approach?’ 15.

[vi] World Intellectual Property Association, ‘Introduction to Trademark Law & Practice: The Basic Concepts : A WIPO Training Manual’. (WIPO 1989).

[vii] “‘Registration Process’ <https://euipo.europa.eu/ohimportal/en/registration-process> accessed 28 March 2022.“

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