UKFT has submitted a response to the Intellectual Property Office (IPO) design rights consultation, on behalf of the UK fashion and textile industry.

Protection of Intellectual Property is a key issue for the fashion and textiles industry, which relies on creativity, particularly in relation to its designs. We have increased the cost and complexity of IP protection in the UK by leaving the EU wide systems for the protection of trademarks and designs. We need to ensure that the UK is seen as:

• Having a very international approach and fit for purpose IP system, reciprocity is key
• A territory that is a safe harbour for brand owners (from emerging designers to large corporates, based in the UK or selling into the UK) with the availability of unregistered designs and controls over matters such as exhaustion of rights. Without this many businesses may prefer to focus on expansion in other markets.
• The EU is undertaking its own consultation of design rights, and given that these issues impact both businesses established in the UK and the EU we are asking that the UK and EU’s positions are aligned

The main issues to highlight are the cost of registration and enforcement and the complexity of the system.

• Prior to Brexit, designers regularly relied on Unregistered Community Design rights, which provided unregistered design rights throughout the EU (including the UK). This was a cost effective mechanism given the number of products and seasonal ranges produced.
• The EU withdrawal agreement did not allow for designers first showing designs in the UK to continue to rely on Unregistered Community Designs in the EU. This means that a designer first showing designs in the UK may not have unregistered design rights in the EU. In addition, the Supplementary Unregistered Design right that was created in the UK in anticipation of Brexit that mirrors Unregistered Community Designs only provides rights in the UK and may exist only if designs are first shown in the UK. This means that a designer first showing designs in the EU may not have unregistered design rights in the UK.
• It may be possible to secure unregistered design protection in both territories by disclosing a design simultaneously in both the UK and the EU (for example via a website, or social media) but this is currently untested. This means that for designers to have certainty of obtaining design protection in the UK and EU they need to register designs in both territories. Whilst design filing is cheaper than filing trade marks, this is still a cost that many emerging and established businesses cannot afford. Equally, many designers only seek to rely on design rights when an infringement occurs, and at that point it may be too late for the designer to seek registered protection which is only available for 12 months after public disclosure.
• The complexity of the design system in the UK provides challenges for businesses of any size. Without automatic protections, many are likely to have difficulty in enforcing their rights and may choose to market, invest and/or locate elsewhere.

UKFT Response to IPO Design Rights consultation