CHAPTER 11. Protecting Your Brand and Products
Intellectual Property (IP) Overview
BY NOW YOU may have chosen your brand name and possibly commissioned a designer to produce a logo for it. At this stage you should start thinking about protecting your logo and registering it as a trademark. There are different types of intellectual property (IP) that you can protect. Legal rights can help a fashion designer in two distinct ways:
- They can stop someone else benefiting from your hard work by copying or using your textile or product without your permission.
- They can generate revenue from your designs by allowing you to enter into licensing agreements with third parties.
Intellectual property covers four main areas:
- Patents – How something works.
- Designs – What it looks like.
- Trademarks – What you call it.
- Copyright – Artistic or literary expression.
Protecting Your Trademark
Your trademark is your unique identifier and distinguishes your product from anyone else’s. In many cases, designers use their own name as that immediately gives a brand personality. It can take many forms, for example, words, slogans, logos, shapes, colours and sounds.
Trademarks are registered for specific goods or services within individual subjects, known as classes. The Intellectual Property Office (IPO) provides a breakdown of these classes (www.ipo.gov.uk/tm/t-applying/t-class/t-class-guide.htm). So if you were thinking of producing both clothing and handbags, you would have to register your trademark in two classes.
There are restrictions on what you can call a trademark – it should not be descriptive and must not include nouns, common surnames, geographical names, registered company names or anything implying royal patronage. Before you finally decide on your name and logo design, you should search to make sure no one else has registered the same or very similar mark. You can do this for free using the online Patent Office enquiry database (www.ipo.gov.uk/tm/t-find/t-find-text).
Once you have ascertained your name is available, then you can start the registration process with the Patent Office. There are agencies and solicitors that will, for a fee, undertake this process for you. However, it is all online now and is a relatively straightforward process – when you register the name, you will be able to choose the different relevant classes, e.g. clothing would be in a different class to educational materials.
The basic cost will be between £200 and £300, depending on the classes and service used. It should take around 5 to 6 months for official registration to be completed. The IPO office is extremely helpful and has online guides, or will be happy to talk you through the process (0300 3002000).
Patents
A patent for an invention is granted by the government to the inventor, giving the inventor the right to stop others, for a limited period, from making, using or selling the invention without their permission. When a patent is granted, the invention becomes the property of the inventor that, like any other form of property or business asset, can be bought, sold, rented or hired with their permission. An invention must be capable of being made or used in some kind of industry. This means that the invention must take the practical form of an apparatus or device, a product such as some new material, or an industrial process or method of operation.
Copyright
Copyright is an automatic right that comes into existence once work is created. It regulates the exploitation of ‘cultural goods’, such as drawings, paintings, collages, sculpture and photography.
There is no need for registration, unlike other areas of intellectual property such as patents, registered designs and trademarks. It is recommended but not required that you mark your work © (your name and the year) to any designs, even preliminary sketches.
Copyright protects the expression of creativity by the author, not the general idea. So you cannot protect an idea for a dress, but once drawn or painted, it is the drawing or painting of the dress, as an expression of that idea, which is protected.
Design right
This is the protection of the appearance of something three dimensional like a product or logo. Design right is like copyright in that the protection arises automatically when the design is created. Design rights can be relevant in such areas as fashion, costume and product design.
ACID (Anti Copying In Design) (www.acid.uk.com) is a membership organisation that offers support in the event you feel your IP has been infringed. Annual membership currently starts at £180 including VAT and is based on turnover.
Licences
There are two main types of copyright licence:
1. Non-exclusive licence
A non-exclusive licence gives someone else the right to use your work non-exclusively in specified circumstances (for example, for 12 months in a particular medium). By granting a non-exclusive licence you retain ownership of the copyright and the continued right to use your work, including licensing it to other parties.
2. Exclusive licence
An exclusive licence is an agreement where you permit someone else to be the sole user of your work. You also promise the other person that you will not grant any other licences to third parties, or use the work yourself.
More information is available at:
- British Library Business & IP Centre (www.bl.uk/bipc)
- Intellectual Property Office (www.ipo.gov.uk)
- Own-it (www.own-it.org)
IP lawyers
Lawyers who work with creative businesses and specialise in this area include:
- Briffa (www.briffa.com)
- Shoosmiths (www.shoosmiths.co.uk)
- Charles Russell (www.charlesrussell.co.uk)
- Sheridans (www.sheridans.co.uk)
Business Name
Although you may have registered your brand name as a trademark, this doesn’t give you the automatic right to its exclusive use in other areas.
The trade name is the name under which your business is run. If you are a sole trader, the business name may be the same as your brand name; especially if your name is the brand.
If you are setting up a limited company you will need to register the name with Companies House (see Chapter 2). You may find that your brand name isn’t available, so your trading name may end up being different to the brand name. In this case, to avoid confusion, just use the brand name in your promotional activity.
NOTE: The brand name is likely to be an asset of the limited company – hence situations have occurred when a designer using their own name as the brand name has ended up losing the right to use their own name when they left the business, e.g. Roland Mouret, Jil Sander and Jimmy Choo. It’s something to consider when you’re planning your business.