Workshop: commercial

The problem

It is said that we live not according to reason, but according to fashion. The law, of course, is a creature of reason '“ and among all the creative industries, fashion designers are some of the least well protected.

The fashion industry is renowned for plagiarism, but does that mean that your client's designs can be lifted freely and without recompense? And what steps should you be telling such clients to take either right away, or (more likely) in the future to protect against another design being appropriated?

If you act for a fashion designer client, eventually the inevitable will happen. He or she walks in, in indignant fashion (pun intended) and demands redress. Your client is insistent that they can demonstrate that they designed 'that dress' '“ be it a high-profile wedding dress featured in international publications, the heroine's evening gown from last night's glitzy film launch, or a new £5 bargain sold alongside the eggs in a supermarket. So what do you do for them?

As a general observation designers do recognise that fashion trends only exist as a result of influence. This is usually influence on mass-market retail exerted from themes developed by the couture houses; it is rare for offence to be taken because a concept or idea is utilised.

Considerations

A grievance arises where design is flagrantly copied, or where design details are replicated which wrongly suggest that the product in the marketplace was designed or produced by someone entirely different '“ the clasp on a Hermes handbag for example.

When dealing with the aggrieved designer, it is likely that they do not have a design registration. In this case the key points to get across are that there is no copyright in an idea alone, and it is only very close copying that may be protected.

It will be necessary to make a comparison of the overall look and feel of the design, as well as a piecewise analysis indicating as many minor or elemental duplications as possible. It is likely that you will need the client's practised eye to assist you with this '“ so it is best done in conference, with drawings to hand and an album of photographs from all angles. If practicable, make a test purchase and compare the two pieces side by side.

Most importantly, though, with an unregistered design it must be shown that it was directly copied '“ that the infringing designer had sight of your client's product and that there was an element of plagiarism. If a client's product is already on sale, it may be possible that this is inferred; otherwise, one must look to evidence of industrial espionage '“ which can be difficult to find.

Once you have undergone the analysis, a detailed letter before action should identify all the similarities you have found, and the circumstances of copying that you allege.

In reality a designer is likely to be reluctant to incur substantial costs in chasing the infringer, unless they have deep pockets or a substantial backer. Sadly there have been cases in the past of 'righteous designers' pursuing the infringer at substantial cost and achieving only a pyrrhic victory.

As Coco Chanel said: 'Fashion is made to become unfashionable.' This industry moves quickly '“ so a quick action for damages will usually be a better option than enforcing an ongoing license.

In many cases '“ notably the weaker ones '“ the most constructive advice to give a client is to try and regard the infringement as an object lesson.

It may seem like asking directions to be told 'I wouldn't start from here' '“ but the designer should be told that their efforts might well be better directed to protecting themselves in the future.

The checklist which they should address should contain the following:

Trademark protection '“ build a brand and be the better 'label'. This may attract more copying '“ but in the fashion world the real deal will always command respect, and if brand copycats arise they will be far easier to restrain.

Registered design '“ this beats the unregistered protection hands down, and can extend to whole designs or elements of them. The need to show evidence of copying is extinguished, and the costs of enforcement plummet. This suits the fashion world in particular '“ as the initial right can be obtained inexpensively for five years, with no need to renew for a dwindling line.

Copyright '“ costs nothing, but requires the designer to maintain good 'housekeeping'. Sketches should be kept on record, with signatures and dates; prototypes should be preserved to show a train of development and, by extension, originality.

If the client can be persuaded to let the infringement action drop, and instead to divert some funds into shoring up their protection for the future rather than risking cash, they will be developing true assets for their business.