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Will digital be the new norm for fashion brands following Covid-19 pandemic & how will this impact designers’ right to Community unregistered design protection?


19th Jun 2020

With Covid-19 taking over 2020, fashion brands are having to come up with new and innovative ways to let the world know about their upcoming designs while adhering to social distancing rules due to the pandemic.

Saint Laurent announced in April that they would no longer be participating in Paris Fashion Week for the rest of the year, due to the coronavirus. Gucci also announced that they would no longer be following the seasonal calendar for Fashion Week, cutting down their usual five shows to two.

Last month, designer Anifa Mvuemba of the Congolese brand Hanifa introduced us to fashion shows using 3D models to debut her new collection on Instagram Live, which took innovation to a whole new level.

Last Friday kicked off London Fashion Week’s first ever digital event, which includes live streams, visual lookbooks, interactive timelines and 360 degree photos and videos to show designers’ upcoming collections.

So, has digital become the new normal for fashion brands to debut their new collections?

It certainly makes fashion more accessible to enthusiasts across the world. However, from an IP perspective, this potential shift in the method of first disclosure of new collections and designs leads to uncertainty over designers’ ability to benefit from UK and Community unregistered design protection.

Community unregistered design protection, which has been available to EU and UK designers and businesses disclosing their designs for the first time in the EU, is a well-used IP right in the fashion industry as designs change on a seasonal basis and it has a different legal scope to UK design right – notably the Community version protects fabric designs but UK design right doesn’t.  An EU unregistered design right grants the proprietor three years’ protection from copying.

Designers are already asking the question: “Following Brexit, what happens if I’m disclosing my new designs in the UK, when it will no longer be in the EU?  Will I still get any Community unregistered design protection?”

UK-based businesses and designers disclosing first in the UK will continue to benefit from the unregistered design protection in the UK which has been expanded under the post-Brexit regime in the UK, including a new supplementary unregistered design right that will mirror the Community unregistered design protection but have effect only in the UK. However, further guidance is needed on whether they will qualify for Community unregistered design protection as well.   Similarly, EU-based businesses and designers disclosing first in the EU will continue to get Community unregistered design protection but further guidance is needed on whether they will also qualify for UK unregistered design protection.  The UK Government’s latest draft proposal in the Brexit negotiations suggests that designers might be able to access both Community and UK unregistered protection, irrespective of the territory of first disclosure.

By fashion shows going digital and being live-streamed around the world in multiple different time zones, where will the designs be disclosed first and what does that mean for the protection will they get?  Will designs be first disclosed in the country from which the event is being streamed?  Or will they be simultaneously first disclosed in the UK and Europe (and everywhere else in the world) and does this lead to both UK and Community unregistered design protection arising automatically? Further direction is needed on this.

Do get in touch with us if you have any queries with regard to the design protection available for your new designs.

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.

Author
Hannah Burrows
Assistant
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Would you like to know more? You can talk to Hannah Burrows who will be able to help. Call (0)20 7242 0901

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