Everybody knows that shoe design is big business. Top brands such as Rieker recognise this and take active steps to protect their designs. In such a competitive market it is often difficult to work out exactly what is and is not permitted when it comes to other people's designs.
In the current market, protecting designs is becoming increasingly important. As financial pressures increase there is always a temptation to cut down on design costs and to purchase cheap products from the Far East without giving any thought to their design origin. Howes Percival act for a number of fashion and footwear brands including Rieker, who are stamping down on unauthorised copying of their designs. Having spent thousands of pounds on design they are simply not prepared to tolerate unauthorised reproductions.
As in all aspects of the fashion industry it is extremely common for designers to take 'inspiration' from their competitors and from top designers. The question is when does taking inspiration cross the line and become something which could land you on the wrong end of court proceedings.
The first question is what is protected by design right. This is not straightforward as there are both UK and Community Design Right regimes. Whilst these regimes run concurrently the protection offered is not uniform. Here we are going to focus on the Community Design Right as this is the one most commonly encountered in the fashion and footwear industries. To be protected as a Community Design a design must be new and have individual character. Whilst this test for protection sounds relatively straightforward, it is not. There has been much debate as to what is and is not 'new' and/or what has or has not got 'individual character'. If you are in any doubt we would suggest you speak to a specialist Intellectual Property lawyer.
Community designs are protected throughout Europe. The regime allows businesses to trial their designs for 12 months before deciding whether to register them for protection. A registered Community design can be protected for as much as 25 years. Alternatively, and this is particularly common place in fast moving seasonal industries such as footwear, you can obtain 3 years protection for your design without having to register it at all.
So what is and what is not permitted. Well simply speaking if you copy a design you are exposing yourself to a potential design right infringement action. It does not matter if you have the design made outside Europe as the importation and sale of an infringing design will make you liable. Innocence is no defence and so it pays to keep an eye on your competitors, not so that you can copy their designs but to ensure that you do not inadvertently purchase an infringing design from a third party. To avoid liability you need to ensure that your designs give a different overall impression. We appreciate that this may be difficult to determine and if you are in any doubt you should seek specialist advice from an Intellectual Property lawyer who will be able to let you know how risky the launch of any particular product may be.
So the final message is, think carefully about the designs you deal in, become design savvy and if in any doubt seek advice BEFORE launching your product.