Dickenson and Woods spend their days advising creatives on what Intellectual Property rights mean to them, what they can do to protect theirs, and how they can avoid stepping on other people’s. As Dickenson admits, this is an incredibly complex area of law, filled with nuance and ever-changing depending on region and its associated precedents, and so the pair sought to explain it in layman’s terms to a slightly dreary audience, sipping complimentary beers on a chilly Wednesday evening. Essentially, intellectual property refers to a creation that has stemmed from an individual’s intellect, primarily being copyright, which protects “people’s real creations” as Dickenson puts it. The pair also covered the intricacies of trademarks, which provide protection for a brand, and patents that protect inventions that serve a demonstrable function
Trademarks cost money to both register and uphold, and so it’s important to be absolutely sure of what you are registering before applying.
Beginning with trademarks, as Julia explained, these “indicate the brand origin of a product.” They explained trademarks as being, “a graphical representation, be it an image or word, shape or colour, which people will understand as designating a particular brand origin.” Trademarks cannot be adjectives, they must be descriptive and not distinctive, this results in the best trademarks being those that are the most unique, and can relate to specific brands rather than having multiple possible meanings. To register a trademark, a brand or creative must file an application and must be explicit in what the proposed trademark protects, including the products covered by it, such as sportswear, footwear, or jewellery. Trademarks cost money to both register and uphold, and so it’s important to be absolutely sure of what you are registering before applying. The costs of trademarks “vary quite a lot” explained Julia, “you’re looking at a minimum of £500 for a trademark in the UK plus the associated legal costs.”
Dickenson then went on to add that trademarks are territorial, meaning just because it is registered within one country, that does not provide you with protection in others. Important to note: trademarks registered in the EU will cover all countries in the EU, however, due to Brexit, this is no longer the case in the UK. It is therefore important, as Julia explains, to preempt where your products may become popular in the future. “Where a pirate may see what you are doing in Europe and jump ahead of you,” she explains. There are many ‘bad faith’ preemptive so-called ‘pirate’ registrations, particularly in China where emerging European designers are often blocked from registering a trademark due to someone else beating them to it, rendering them unable to enter the Chinese market until they have successfully purchased the trademark, essentially holding the brand to ransom. So, it’s all about predicting what may happen in the near future and acting to insulate yourself or your brand from these problems.
The key thing to remember here is to keep good dated records of your design process, everything from drawings to swatches to tests, ensuring you can prove if required to, that you are expressing your intellectual creation, and when you did it.
The pair then moved onto copyright, which as Woods explains “protects the expression of the idea, not the idea itself.” Copyright arises automatically in the UK, providing you meet the relevant criteria. The UK copyright law operates using a ‘closed list’, which Woods explains includes rather limited categories including literary, dramatic, artistic works, and music. Within these categories exist sub-categories, for example within artistic works are graphic works, sculptures, and works of artistic craftsmanship. Under the law, if you produce something that doesn’t fit into one of these categories then you are not entitled to copyright protection, leaving many unprotected, and others attempting to “shoe-horn their creations into one of those groups,” as Julia mentions. Woods then spoke of recent developments in the European Union, where the courts have judged that work which shows an “expression of intellectual creation” is entitled to copyright protection, allowing for a higher degree of insulation for young designers and creatives producing work that doesn’t fit into the strict categories dictated by UK law, a decision welcomed by creative practitioners across Europe. “Only time will tell,” if the UK courts will adapt their language to fit more in line with the EU’s interpretations, however, based on the conservative nature of many of Britains judges, particularly when it comes to the arts, this looks unlikely to change post-Brexit.
If this all sounds a bit doom and gloom, don’t worry, as Dickenson explained, most countries around the world follow the Berne Convention, a copyright treaty, followed by the majority of major nations, that affords those with copyright protection in one country the same protections in others, simplifying the process. The key thing to remember here is to keep good dated records of your design process, everything from drawings to swatches to tests, ensuring you can prove if required to, that you are expressing your intellectual creation, and when you did it. It’s also worth noting that especially in the UK, owing to extremely high court costs, only those who can afford it end up having their cases heard. This leads to the bigger brands holding the majority of the legal power over intellectual property. “The vast majority of cases are settled outside of court,” explains Dickenson.
“If you are expelling artistic creation in the way you take a photograph, you will be closer to establishing copyright protection.” – Catherine Woods
In terms of the protection of photographs, again, the idea of intellectual creation comes into the argument. The pair spoke about the legal differences between a ‘mere photograph’, which Woods explains as being an image with “less intellectual creation imbued within it,” compared to an image where elements such as light and composition are taken into account. This is the language used by the courts to give protection to images that project the expression of an idea, essentially “if you are expelling artistic creation in the way you take a photograph, you will be closer to establishing copyright protection,” Catherine adds. Woods goes further here, speaking of the recreation of iconic imagery from films or historic campaigns, and the need for the final product to be significantly different from the original copyright-protected work. “It’s about quality, not quantity, you’ve got to be careful when looking at something to go towards your creation. Are they copyright protected? Are you qualitatively copying a substantial part of that?” Good to keep in mind if you want to avoid a cease and desist from a multi-billion dollar company.
“To have a valid design, it needs to be new and it needs to create a different overall impression to other designs available on the market already.” – Julia Dickenson
The pair then moved onto design rights, which protect, “the appearance, shape and the configuration of a product,” explains Julia. “To have a valid design, it needs to be new and it needs to create a different overall impression to other designs available on the market already.” Dickenson then explained the difficulties of the UK courts grappling with questions of design and the issue of ‘overall impression’, explaining that design protections are “useful but don’t really take you that far.” The advantage of these is the ease of registering a design online, but “they offer a very narrow protection,” explains Dickenson, “registered designs are worth getting for a product that’s going to have a long life, and that someone is likely to copy.” In the UK and EU, if you don’t register within twelve months you will invalidate your own original design, and therefore be unable to register it.
Woods then moved on to speak about patents, which she expressed, “are a slightly less relevant IP right” for most of us at the talk. A patent “protects an invention, and confers a twenty-year monopoly right over that invention.” For an invention to receive a patent it must be a new invention and be “capable of being used in industry.” After the twenty-year period, “a patent is released to the world to push the scientific frontier further,” explains Catherine, Patents, according to the pair, are most relevant to those producing wearable technology, and those creating new materials for their designs. Dickenson went on to talk about the production of new sustainable materials, in which their makers “file patents, but then effectively grant everyone the rights to use them, to bring up the industry,” she explains, “we are seeing that in the new fabrics space and technologies around sustainability.”
In terms of infringements, the most important thing to remember is that “it doesn’t matter if you don’t know about it, copying or not, when somebody has a right if you are using a similar or identical mark, you could be done for infringement.: Essentially, even if you don’t realise you’ve copied something you could be caught out.
Intellectual property is something good to “leverage and exploit,” according to Woods there are two key ways to do so. The first of which is licensing where ‘the rights holder will always retain the ownership of a right but the design is essentially rented out.’ The second way is an assignment, in which you assign all your intellectual property rights to whoever is buying them. Assignments lead to issues when “often young designers are approached by movie studios or various institutions who provide the designer with a license which is ridiculously broad and perpetual, exclusive, royalty-free. They are effectively signing all their rights away to their creation,” Dickenson warns. Another issue arises when eponymous brands sell up and the designer can no longer use their name for their creations, as happened to Galliano after leaving LVMH and its control over the John Galliano brand.
“The majority of cases that we take on don’t actually get through to a decision, most end in an exchange of letters and bargaining.” – Julia Dickenson
So what can you do if somebody has infringed your intellectual property rights? Of course, the courts are relatively inaccessible, “it will generally cost around £200,000,” explained Julia, “it’s not going to generally be a case of litigating, so what we would recommend is using the approaches that build up momentum and have an impact without actually litigating.” Number one on the list is social media. “Brands are incredibly fearful of adverse social media publicity,” she went on to say. Julia proposes writing and posting an open letter to the brand online, “those letters can be incredibly helpful because they get forwarded to a legal team.” If this fails, write a cease and desist letter, understand what rights you have in your work, explain you have copyrights, ask for the information about the sales of the product in question, and request to receive a percentage or all income from the product. The courts are the last resort, “the majority of cases that we take on don’t actually get through to a decision, most end in an exchange of letters and bargaining,” explains Julia.
So all hope is not lost, there are ways to protect your intellectual property without having to fork out thousands for legal costs, but don’t be mistaken, it is vital to be thorough, keep records, file the correct protections for your creations and ensure that you think proactively about where your designs may become popular, to prevent any potential difficulties that may arise in the future. And remember, the expression of your ideas, at least in the UK, is often automatically protected by copyright laws.