From sketch to store, don't let anyone cut from your cloth

The legal side is probably the last thing on your mind! The only thing is, the legal side plays a vital role in giving you the best possible chance of success.

Within the fashion industry, the legal side impacts every aspect of your business—in particular Intellectual Property (IP).

IP protects your textiles, the new materials you create, your manufacturing techniques, your brand, the appearance of your products, and even your packaging. It supports your business model. It ensures you don’t misrepresent yourself in your marketing and that claims around, for example, your brand’s sustainability can be supported.

It also minimises the likelihood that your work is copied, fast fashioned or counterfeited by competitors. These are very real threats for every successful fashion label.

Knowing what IP you have and how to protect it maximises your appeal to potential investors by presenting your business plan as credible, cohesive, and underpinned by the global protection and commercialisation strategies you’ll need to deliver your plan and make sure your investors achieve the exit they want.

Our specialist fashion team has worked alongside brands and innovators at every stage of their life, from globally recognised names to disruptive new designers, textile labs and material-tech start-ups shaping the future of European clothing.

The reason so many fashion businesses come to us is simple; we take care of everything.

Unlike most other firms, the trade mark, patent and design attorneys and IP solicitors in our multidisciplinary team work seamlessly across our offices in the UK, Denmark and Sweden to make sure everything you need to achieve your commercial goals is in place.

Better still, as fashion specialists, they can apply their industry expertise directly to their legal advice. This ensures the guidance you receive is completely tailored to the nuances of your market, your supply chain and your creative vision.

In this article, we will explain the different IP rights and how they are used to identify, protect, exploit, and enforce the different parts of an ambitious fashion business.

While they may look self-contained, a quick look back at your business plan will immediately show just how interrelated they are. To give yourself the best possible chance of maximising the value of your ideas, this is exactly how you need to tackle them.

Trade marks

Your trade marks will not only help you establish a unique identity for your garments, textiles and brand, but also help you differentiate yourself from your competitors and build the levels of market recognition and customer loyalty you need to succeed.

Better still, over time and managed correctly, your trade marks can become highly valuable assets for a company, again attracting investors and also driving revenue through licensing, collaborations and global distribution agreements.

To establish and protect your brand identity, you will need to:

• Choose a mark that is both distinctive and unique
• Choose a mark that is memorable and easy to recognise to give your brand the best chance of standing out from competitors
• Avoid marks that are generic or descriptive (these are extremely hard to protect)
• Make sure a similar mark isn’t already in use by conducting a clearance search (the last thing you want is to launch a brand that quickly drags you into an infringement dispute)
• Consider which classes you need to protect your mark in (fashion often spans multiple classes — clothing, footwear, accessories, bags, homewares, even digital items and NFT’s)
• Consider which countries you need trade mark protection in if you are planning to trade or manufacture internationally
• Use your mark consistently because leaving it unused can lead to loss of rights
• Protect your packaging and retail experience (elements like colours, bag designs or even store layouts may be eligible for protection using trade marks and design rights together)

You also need to have a plan for ongoing monitoring of your market to spot potential infringements and be fully prepared to enforce your brand if it is threatened in any way.

How can we help?

Our expert branding team can help you at every stage of the brand protection process, from performing clearance searches and registering your rights to setting your brand strategy and managing your portfolio.

We can also actively monitor the market for potential infringements using our best-in-class online brand protection product, iProvidence.

And if you find yourself in an infringement action, our multidisciplinary team of trade mark attorneys and IP solicitors will find the best way to either enforce your rights or defend you against any claims made by competitors.

Designs & copyright

Unique silhouettes, prints, trim details, garment constructions and packaging are vital in the fashion industry. They’re often the first thing that captures a consumer’s attention.

However, if you lose control of what makes you stand out, you will lose your appeal, not to mention the customer base you’ve worked so hard to build, if other brands are free to mimic your visual identity or signature style.

To protect the unique elements of your products’ appearance, you will need to:

• Identify the unique design elements that are integral to your garments, accessories, textiles, or packaging
• Maintain records of your design development (sketches, CAD’s, fabric samples, prototypes, revisions) to prove the originality is yours should a dispute arise
• Ensure you own the rights you rely on and document this, especially when working with freelancers, manufacturers or collaborators
• Determine whether these elements meet the criteria for copyright or design rights protection
• Consider the type of design protection appropriate for each element (i.e. surface patterns, garment shapes, hardware, or textile structures may all require different strategies)
• Work out when to progress protection (timing will vary between jurisdictions and between types of rights)
• Assess what protection you will need in the different geographic markets you intend to sell in
• Be aware of renewal requirements; missing them can lead to rights being lost
• Monitor the market for potential infringements and be ready to take action
• Integrate your design protection into your overall IP strategy to ensure your products enjoy the strongest possible protection

How can we help?

Many members of our fashion team are product designers as well as qualified attorneys. This is why we are so passionate about smart, innovative design, whether this design relates to your garments, hardware, packaging or new textile creations.

We can explain all the options you can use to protect the most important aspects of your designs through registered or unregistered design rights, utility models or design patents.

We can also assist with clearance to ensure the designs you wish to protect are available to use.

If infringement arises, our multidisciplinary team of design attorneys and IP solicitors will find the best way to enforce your rights or defend you against claims from competitors.

Patents

If you are using innovative new methods to create textiles, finishes, coatings, sustainable fibres, biodegradable materials or manufacturing processes, you should consider patenting your ideas to prevent competitors from using them.

Patent protection is a failsafe way to protect your most valuable innovations. Patents safeguard the unique and inventive processes, technologies or material compositions involved in your work, stopping others from replicating or profiting from your innovations without permission.

As such, patents can play a crucial role in helping you build competitive advantage, preserve exclusivity, increase your business’s value and create new revenue opportunities through licensing or collaboration.

To protect the innovation involved in your materials or processes, you will need to:

• Check what you have is actually patentable (aesthetic designs are generally not patentable but novel fibre structures, coating techniques, recycling processes, dyeing methods and textile technologies could very well be)
• Assess the uniqueness and inventiveness of your innovation (your invention must be novel, non-obvious, and have utility)
• Check for prior art to ensure your idea has not already been disclosed
• Agree a filing strategy, basically when and where to file
• Keep your inventions confidential prior to filing because any form of public disclosure can destroy your ability to patent
• Budget for legal fees, patents aren’t cheap but they are exceedingly strong
• Actively monitor the market for potential infringements and be ready to enforce your patent rights

How can we help?

The patent attorneys in our fashion team are here to support you through every stage of the protection and commercialisation process for your innovations, from identifying patentable concepts to creating a filing strategy that complements your business plan.

Working closely with our IP solicitors, our patent attorneys are ready to enforce your rights or defend you if a dispute arises with competitive patent holders.

Trade secrets

Some of the most valuable trade secrets in fashion (proprietary finishing techniques, textile formulations, dye recipes, fibre blends, or even supply-chain data) are responsible for a product’s success. Yet despite their importance, trade secrets are often the forgotten component of a company’s IP portfolio.

This is usually because businesses don’t fully understand trade secrets. They know they exist, but they’re not sure how to identify them, protect them or manage them. However, they need to learn not least because trade secrets are particularly important in fashion and materials as they often offer the most straightforward way to protect fabric compositions, technical processes, and sourcing strategies. Trade secrets can be incredibly cost-effective. They are also extremely hard wearing as they remain protected indefinitely as long as they remain confidential.

If you want to protect your formulations, fibre blends, processes or confidential data using trade secrets, you will need to:

• Identify and document the specific information that qualifies as a trade secret
• Implement robust internal policies and procedures to maintain confidentiality
• Educate employees about the importance of trade secrets and how your company protects them
• Have a process for enforcing your trade secrets if misuse occurs
• Use secure storage, encrypted databases, and restricted access to protect digital trade secrets
• Incorporate confidentiality and non-disclosure clauses into all collaboration and supplier agreements, especially when working with other brands, mills, labs or third-party factories
• Conduct periodic risk assessments to identify weaknesses
• Maintain detailed records (including creation dates, access logs and updates to the composition of your secrets) in case disputes arise
• Understand and comply with the trade secret laws in the jurisdictions where you operate … they vary

How can we help?

Our dedicated fashion team understands all aspects of protecting trade secrets. We can help you identify and record your secrets, implement the required policies, training and documentation and take the required enforcement action if your secrets are compromised.

To make the process as simple as possible, we created Safeguard, a fixed price/fixed outcome audit designed to help clients identify, assess and protect their trade secrets.

Commercial agreements & disputes

Our solicitors are experts in drafting and negotiating the IP-related agreements you’ll need to develop, capture, scale and maximise the commercial value of your products.

This is critical in fashion given the extensive interaction you could have with suppliers, mills, manufacturers, distributors, retailers, creative collaborators and licensing partners.

Support with brand licensing and textile-technology licensing is especially important to fashion brands as licensing can be used to create compelling additional revenue streams.

You should always underpin your IP rights with robust contracts. Depending on your business model, you may require:

• Supplier Agreements outlining terms with your mills, factories or raw-material suppliers
• Manufacturing, Distribution and/or Wholesale Agreements covering production and distribution
• Licensing Agreements governing brand licensing, cobranding or technology licensing
• Confidentiality Agreements to protect discussions with third parties, as well as clauses preventing employees from disclosing commercial information
• Promotional, Marketing, Co-Marketing and Sponsorship Agreements covering collaborations, ambassadors and other promotional activity
• Assignments transferring IP rights from designers, photographers, pattern-cutters, freelancers or manufacturers

How can we help?

Our IP solicitors specialise in helping fashion businesses minimise the risks that could impact the IP holding most of your brand and lines’ commercial value.

They will ensure your IP is properly protected, help you meet relevant compliance and labelling requirements, draft and negotiate commercial agreements across your supply chain and create licensing agreements to open new revenue streams.

If you’re planning international expansion, our global network will guide you through local legal considerations across markets.

And in the event of a dispute, our experienced litigators will find the best way to enforce or defend your position anywhere in the world, whether this involves court action or alternative dispute resolution to reduce cost and protect your reputation.