Particularly as the smaller designers have smaller budgets to combat the problem, aren’t they more in danger of being adversely affected?
They created the idea, invested time effort and money in bringing that idea to market only to have some unscrupulous manufacturer ride on their coat
tails. Indeed the infringer stands to gain a better return than the designer since they don’t have to account for the overheads of utilising marketing, PR and promotion that go into bringing a brand to market.

Design Registration Law

However, designers can now do more to protect themselves with the introduction of recent changes in design registration law. Now designers can
register single designs or patterns, which means that a fabric pattern once registered is protected whether it appears as a garment or the designer decides to use it on a tea-pot.
Designers also have up to a year from first introducing a new design before they have to register it, which means they can test the market before deciding which patterns/designs warrant protection.

From this year an EU-wide single design registration system will also be established at OHIM and so once a registration is accepted there, it will be enforceable across the fifteen Member States. These changes are significant as it now allows designers to take action against copying. Bringing action against counterfeiters under copyright or design right meant you had to prove the infringer copied your work. But if you register your designs, no proof is required.

A later design, whether intentionally copied or not, is deemed an infringement and the registered proprietor is entitled to demand a licensing fee or for the infringing designs to be removed from the market. Therefore registered design right is a form of monopoly right - that’s got to be good in anybody’s book.

The other benefit is that infringers can no longer get away with stealing a design and simply changing a few details, since the law is about protecting
component parts, particularly those which contribute to the overall importance of the design.

Unfortunately though the law still isn’t protecting lesser-known designers and niche market producers from the more cunning infringers and free-loaders.
The major retailers (like M&S) can openly sell lookalikes without the consumer ever realising that someone else owns the rights to that design.
The UK law has a massive gap in this respect, since current UK passing-off laws or unfair competition laws, are not applicable.

So, if the law isn't yet stringent enough to fully protect designers, what can they do to protect themselves and perhaps prevent copying in the first
place?

Designer Protection checklist:

• Creating a paper trail is essential. Sign and date all sketches and store them
somewhere safe.

• It is very important to keep everything. Keep notes of design meetings in
date order, make sure all doodles, drawings, designs, even in their infant
stages are retained and kept in proper order.

• Consider joining organisations such as ACID (Anti Copying In Design) for
support and advice.

• Get yourself a decent IP lawyer, with a track record in copyright issues.

• Remember, in most instances initial advice is normally free, so it’s always
worth picking up the phone and getting an opinion from a lawyer before
proceeding.

• Make sure that you are well protected. Register your designs.

• Carry out a review of your existing IP. Is any of it registrable?

• Be proactive. Put everything in order now. Even if you don’t anticipate
problems – you just never know

• Design owners should consider putting a continuous watching service in
place. This can alert you should any attempt be made to register a design
that is too close to your own.

• And don’t forget to pay your renewal fees!

• Make sure you have confidentiality agreements in place with anyone whom
you may consult over producing your ideas or whom you may choose to
involve in the planning, designing or production stages.

• Check out the trade shows. If you exhibit regularly at trade fairs, don’t forget
to carry out an ‘audit’ of the show (or employ a firm of investigators who have
experience in this sort of thing to do it for you) to check someone isn’t
exhibiting a knock-off.

• You’re not just at risk from infringers. Always have back up samples.
You may remember when burglars broke into a famous designer’s studios
and stole his complete collection the night of a successful catwalk debut
leaving his studio bare. Before you know it they’re shipped over to the Far
East for mass production.

• Think about security guards when transferring collections or moving them
from studio to shop or catwalk. An unnecessary expense? Tell that to
Antonio Berardi who lost his entire collection in transit from the Italian
manufacturer to his studio or Liza Bruce, who lost an entire collection from
her shop in Knightsbridge.

• Think about better insurance. One of the results of these recent changes in
Design Registration Law is that design right infringement claims are likely to
become more frequent, so its worth checking that existing insurance policies
cover such claims.