Are fashion designs protected by intellectual property laws? [Pulse Explainer]

Many fashion designers wonder what sort of intellectual property protection is available to them.

What protection do fashion designers have ?[Rong rong DeVoe fashionsketches]

A lot of black fashion designers complain that they spend countless hours trying to perfect and sew a design just to see a copy on popular sites like Fashion Nova. Even Kim K complained about her outfits being replicated by the same brand. Versace took Fashion Nova to court for replicating the Jlo jungle dress but the two companies settled out of court.

Can fashion designs be copyrighted?

Fashion designs can mean a couple of things. A fashion design could mean a sketch, colour, like Louboutin's renowned red-bottom shoes, type of fabric or how the outfit is cut or the patterns on the cloth.

Copyright law in Nigeria protects literary work, musical works, artistic works, cinematograph works and sound recordings.

Even though copyright does not protect colour, it protects sketches to an extent, that is the original.

Your sketch cannot be copied, shared, or shown in public without your permission. However, original expressions, not ideas, are protected by copyright. Consequently, it does not necessarily stop others from manufacturing clothes that resemble your sketch because the protection is in the drawing itself, not the underlying idea.

When it comes to graphic design or textile designs (like the Versace prints), those are definitely protected under copyright because they fall under artistic words. However, words cannot be copyrighted.

The way a fabric is cut is not protected under copyright law. Since Nigeria doesn’t have a lot of authority on this point, we would be using some persuasive authority from the United States. In Star Athletica v Varsity brands the Supreme Court held that copyright affords “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions.”

Since we know that copyright does not extend full coverage to your fashion designs, does the trademark law offer some protection?

Trademarks refer to certain words, colours or symbols that make a brand distinct and easily recognizable. When it comes to fashion design, most designers trademark their trade name and their symbols. e.g Dolce and Gabbana's famous D & G symbol.

The bulk of intellectual property protection available to fashion designers is patents - even sketches can be protected under patents, but they must be innovative.

The Nigeria law of patents is governed by the Patents and Designs Act 1970, which provides that a patent may be granted for an invention that: is new; involves an inventive step ("not obvious") and is capable of industrial application ("useful");

Relevant patents are available in two types: utility patents (which protect practical inventions and processes) and design patents which protect the design of a product. You might be able to use a design patent to protect clothing that has a new cut, pattern, design, or embroidery. For your fashion design to qualify as a patent then there must be some level of creativity and innovation.

Different kinds of products are eligible for design patent protection, for example, eyewear, footwear, totes and handbags.

Protecting your intellectual property when it comes to fashion design is a dicey matter but just remember that graphic design, and textiles can be protected under copyright. Patent protection is wider and includes the cut and design. It however doesn't exist because you created a design, it has to be applied for and granted.

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