Justifying designs

Seasonal disruption and fast fashion demands. Last year saw fashion retailers hit by the reality that Spring and Autumn key season collections may become a thing of the past as an unseasonably warm Autumn/Winter caused consumers to shun the woollies and layers.

Partnered with a consumer move to invest in select quality pieces, 2017 could very well see retailers offering cross-seasonal products the year through with more investment and innovation in staple pieces.

And yet, the EUIPO’s 2017 statistical report on EU designs reveals that whilst the second highest number of designs are registered in Lacarno Class 02 – Articles of clothing and haberdashery, figures remain relatively low and show no exponential growth in response to the change in retail trend. The number of designs filed in 2016 in Class 02 was 10,396 with no obvious correlation with seasons on the monthly statistics, an increase just short of 2,000 on 2015’s figures.

Figures for textiles and fabrics (not including ready-made articles) are lower still, ranking in 24^th position in 2016 when breaking registration figures down by class, moving down two positions from the two years previous. Only 916 design registrations were granted in 2016. Since the EUIPO does not carry out a substantive examination of design applications – it is limited to ensuring the application corresponds with the definition of a design and that the design is not contrary to public policy or accepted principles of morality – low figures are unlikely to be attributable to refusals.

In the past, the main explanation for not protecting designs through registration in the fashion industry has been short product lifecycle driven by the seasons and, in turn, a willingness to place reliance on unregistered design rights. However, if the lifecycle of fashion pieces is going to get longer, then reliance on unregistered rights might not be justified in as many instances. Add to this the real concern that when the UK leaves the European Union, unregistered design rights in the UK will be much narrower without a new or extended form of unregistered design right in the UK (for more on this see the article by HGF’s Suzan Ure, ‘The Good, the Bad and the Ugly of Brexit for Intellectual Property Law in Fashion’, December 20, 2016, first published by The Fashion Law).

Relatively speaking, figures for UK registered designs are higher. 2015 saw the number of design applications for clothing haberdashery more than double (319 to 667) whereas the number of applications for textiles decreased (from 79 to 52). At the time of writing, statistics for 2016 have not yet been published. We would however expect to see a rise at least in reaction to Brexit on the back of comments made in the preceding paragraph.

Fashion is getting faster

What was a 6 month lead time on new stock is now closer to 3 months; some brands such as Public Desire have told how they have sourced materials, produced and promoted footwear in a 6 week timeframe to be on people’s feet first. Last year we saw Burberry bridge the gap between catwalk and capsule. Instagram allows large exposure and promotion in a very short timeframe. Consumers are ever-demanding. Not only are they telling retailers what they want, they’re saying when they want it… and that’s now!

As well as meeting the demands of consumers, there are obvious advantages to this from the perspective of designers – cutting out the usual production cycle between catwalk and capsule and reaching consumers ahead of counterfeiters. Some might say this supports the position of a lesser need for registered designs. On the other hand, however, faster fashion surely leaves less room for innovation, meaning even legitimate traders are more likely to take “inspiration” from designs already gone. Against this backdrop, registered designs are an even more valuable asset in keeping copy competitors at a distance, even for cross-seasonal non-staple pieces.

By Adjoa Anim – Adjoa’s experience covers a range of areas within trade mark law. She provides advice concerning brand selection and suitability, trade mark filing strategies and portfolio management of national and international trade marks. She also advises on IP aspects of licence agreements and assignments.