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Q & A
Q: What is the unregistered Community design right? How can I use it to protect my designs in the European Union (EU)?
A: The unregistered Community design right provides fashion designers, including Australian designers, who release their garments in the EU with an automatic design protection right. This right lasts for a period of 3 years from the date the garment is first made available to the public in the EU.
Q: What rights does an unregistered Community design right grant?
A: The owner of the unregistered Community design right has the exclusive right to use and prevent unauthorised third party use of the design in all of the countries within the EU.
Q: I have released a garment in the EU and am aware of a designer that is selling a copy of my design. What can I do about it?
A: Australian designers who have released garments in the EU have the full protection of the unregistered Community design right. If a designer believes that one of its designs which has been released in the EU has been copied then the designer can issue infringement proceedings against copyists in the EU.
Q: What is the test for infringement?
A: In order to succeed in proving that your unregistered design right has been infringed you must show:
- that direct reference was made to your design when the alleged copy product was created; and
- that the alleged copy product does not create a different overall impression on the informed user to that created by the product which is the subject of your unregistered design.
Q: What are the requirements to establish an unregistered Community design?
A: As the name suggests, an unregistered community design does not require registration. In order for an unregistered community design to be valid, the design must be "new" (that is, not identical to design previously been made available to the public) and it must have "individual character".
Q: Do I need to apply for an unregistered Community design right?
A: No. The unregistered Community design right exists automatically for 3 years from the date of first use in the EU. There is no formal process that Australian designers must complete in order to secure an unregistered Community Design Right.
Q: Do I have to pay any fees to secure protection?
A: No. There is no cost involved in securing the unregistered Community design right. It exists automatically as a benefit for designers releasing garments in the EU.
Q: What if I need protection for longer than 3 years?
A: If an Australian designer requires protection of a particular design for a term longer than 3 years, (for instance, where a design is likely to be repeated in a future collection), then the designer can pay the relevant application fees to file a formal registered Community design right application.
A registered Community design right provides protection for an initial period of 5 years from the date of filing the application and may be renewed for further 5 year periods on payment of the required renewal fee to a maximum term of 25 years. An application for a registered Community design must be filed within 6 months of the garment, the subject of the design, being released into the marketplace anywhere in the world.
Communication issues, lack of design technology knowledge and skill, inability to visualise and just plain laziness are all underpinning causes of a dilution of the traditional ‘buying’ process. This evolved because businesses have moved their activities up and down the supply chain searching for additional margins. Many retailers have become product developers with house brands; manufacturers are selling direct through catalogues; agents have become wholesalers / importers and so on. Jobs in the product development area require sound knowledge in product and process. It is not enough to cut out a magazine picture and expect some magical garment to appear through an outsourced production process. Nor is it ethical to go on an overseas buying trip and on return cut a swatch of the fabric for analysis, spike (trace) the garment for a pattern and add it to a rack to complete a range.
Fashion designing is not just about aesthetics, it is also about functionality and many other aspects of the garment and production process. Those designers who have effectively developed a signature style or unique piece would be wise to look into design registration for at least one item in their ranges prior to disclosure. Whilst registering a design can be time consuming and costly, it is a risk management strategy and used wisely can be very effective. A successful prosecution sends a strong message to your supply chain and competitors to treat you well. Design registration also conveys to your consumer the value you place on your designs.
