In the US, so-called design patent is a form of legal protection of a specific, new, design object with a distinctive purpose. Design patents could be characterized as a kind of right which is closest to a design familiar in our legal system. It draws attention because the copyright protection in the US is often not available to fashion designers, due to legal restrictions. Artistic designs of bags, jewelry, furniture, etc.1 are just some of the examples for which this type of protection could be used in the US, but it is commonly reserved for the most exclusive market players, at least for now.
The situation in Europe is different to a certain extent. Most designers and companies limit themselves to the protection of rights through trademark registration (which has its advantages, especially in terms of efficiency and cost effectiveness), even though this type of protection is not envisioned for the protection of such products.
Generally speaking, the fashion industry itself and overproduction in some way stultified the protection of fashion design. This is due to the lightning speed of change in trends, popularization of placing new trends on the Internet and increasing of the role of e-commerce. Design is no longer the most important and decisive factor in the function of fashion and fashion trends. It is quite the opposite, namely, fashion designers (creators) and companies are the factors who dictate fashion through their cultural, ideological and, above all, financial interests.
We believe that we should draw a clear line between the object of industrial design protection and the work of art. Although designs have much in common with works of art, one of the main characteristics of the design is its applicability2, while a work of art does not have to possess such a feature. Furthermore, works of art are unique, while designs primarily have a commercial value because they are designed primarily for manufacturing and selling in quantity.
In the Republic of Serbia, so-called fashion design i.e. intellectual creation aimed at the creation of any kind, can be protected under the regulations of intellectual property rights in three ways: on the basis of industrial property rights, by means of copyright and, finally, on the basis of regulations on combating unfair competition.
The design draws its protection from international treaties and agreements, the most important of which is TRIPS, which in art. 25 and 26 provides protection of creating useful objects in the form of a design.
Although there are several ongoing disputes involving industrial designs before the competent courts in the Republic of Serbia, and at the time of writing of this text, the author is not familiar with a single case in which the court protection of fashion designs was attempted or achieved on the basis of industrial property rights, copyright, or regulations on combating unfair competition on the basis of the Law on Trade. Protection of fashion design is still a rare practice in the Republic of Serbia, and the conclusion is that such a protection is locally still far away. Nevertheless, it is primarily up to domestic practitioners and designers to surprise us and refute this conclusion that we have reached on the basis of statistical data.