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The London Fashion Week problem - Brexit and the protection of designs in the UK

15 September 2017

Autumn’s London Fashion Week launched yesterday evening (14-19 September 2017) but London’s prized position as one of the ‘big four’ fashion capitals could be threatened by changes to IP protection following Brexit.

The principal concern is the availability of Community unregistered design right (UCD) in the UK post-Brexit – the ‘London Fashion Week problem’.

UCD is a particularly important intellectual property right in the fashion industry because it arises without the need for any registration and can protect surface decorations.

The London Fashion Week problem arises because of the interplay between three requirements of the Designs Regulation (Commission Regulation (EC) No 2245/2002):

  1. Firstly, a design must be ‘new’ to obtain protection. Such novelty is worldwide, meaning that a prior disclosure of any materially identical design by anyone anywhere in the world (provided that any such disclosure is not entirely obscure – a threshold rarely met) will preclude the subsistence of UCD.
  2. Secondly, UCD arises automatically in a qualifying design at the time it is first made available to the public in the EU (including during any exhibition or trade show).
  3. Thirdly, a design which is not made public within the territory of the EU shall not enjoy protection as an UCD.

The generally accepted position (although definitive guidance from the CJEU on the impact of the third point above would be widely welcomed) is that UCD therefore cannot arise where a materially identical design is first disclosed outside of the EU, even if disclosed by the rightful owner of any design rights that may otherwise exist in the design. When the UK ceases to be a member of the EU, this will apply to any designs first disclosed in the UK, including during London Fashion Week.

On 6 September 2017, the EU Commission published its position paper on the protection of intellectual property rights post-Brexit. The position paper was silent on the London Fashion Week problem. Further industry lobbying is necessary to push the issue up the negotiating and/or legislative agenda and ensure that the fashion industry in the UK is left with a more satisfactory option than those which it will otherwise be left with post-Brexit, namely:

  1. give up on UCD and rely on other rights instead
  2. give up on the UK and first publicise designs in the EU, or
  3. tread the fine line of first publishing in the EU without drawing so much attention that the London Fashion Week reveal becomes redundant while making sure that the EU disclosure is not obscure.

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