A product that can state it is “Made in the UK” or “Made in Britain” has, for decades, been recognised the world over as a product that has the highest standards of design and British craftsmanship.
Whether that be fashion, jewellery or furniture design, the UK has previously been able to attract the brightest talent in many design fields British companies pride themselves on their heritage and traditions as well as the products themselves to attract custom from around the world.
But it cannot be denied that Brexit has thrown a spanner in the works. There will, as has been extensively discussed since 23 June 2016, be many impacts to the fashion and luxury sector in Britain in the years to come.
I don’t intend to grapple with some of the practical issues such as exporting British products, attracting EU residents to come and live, work and design in the UK for British businesses or how the UK might expand its trading relationships beyond the EU. Instead, as an IP lawyer I am most concerned with how Brexit has changed intellectual property protection and how we will continue to ensure protection for our great design industry.
The design industry predominantly relies on copyright and design rights to protect the creativity and aesthetic appeal of a product. Trade marks can be helpful to protect a specific product if it is capable of being graphically represented and it is not refused by the Intellectual Property Office for any absolute or relative grounds of refusal. Brexit will not cause any huge disruption to the trade mark filing practices of UK or European companies other than some additional administration.
Copyright laws are well harmonised between the UK and Europe so again, the fundamental basis for copyright protection will not be widely affected (although any developments made by the UK courts in due course departing from some recent EU case law, has the potential to return the UK to a stricter regime).
So, UK designers will continue to be able to assert copyright provided they can demonstrate they originated the design.
Designs, on the other hand, will require British companies who rely heavily on this specific IP right to carefully consider how they best protect British products and craftsmanship.
Obtaining registered designs is inexpensive and relatively quick but enforcement often proves problematic with copycat infringers crying (alleging) invalidity of the design. Consequently, both British and European companies alike have placed heavy reliance on unregistered Community and UK design rights. Up until now a company could be eligible for both rights when disclosing a new design in the UK, enabling Community-wide protection. Brexit has changed all this.
The design right afforded to a product will entirely depend upon where it is first disclosed to the public. If in the UK, it will obtain a UK unregistered right, if in the Community, it will obtain a Community unregistered right (plus in the UK, a supplementary unregistered right to provide protection for both 2D and 3D designs including surface decoration, which the Community unregistered right used to provide). But beyond this legal jargon, what does this mean for our Best of British products? Less legal protection. Frankly, obtaining the greatest IP protection will not always be at the forefront of a designer’s mind, but from now on, it should be.
It will be incumbent upon all British design businesses, their lawyers and marketing teams, to think carefully about how it brings a product to market and in which market, in order to best protect themselves from copycat knock-offs. Simultaneous disclosure of designs in both the UK and EU has been touted as the answer, but is it? We won’t know for sure until a bust-up occurs between brands and the court settles it. But for now it will be even more important to think about all stages from product design to launch, such as:
- Recording the process of creation, ideally with date stamps and details of the designer (an employee etc)
- The process of bringing to market and ensuring pre-launch (and pre-disclosure) communications with suppliers are confidential
- Ensuring the product disclosure, whether that be UK or EU, is held so that the design becomes known in the normal course of business to the circles specialised in the sector concerned and therefore counts as a valid disclosure
- Plan for simultaneous online disclosure if both UK and EU unregistered rights are desirable, followed by an actual physical presence of the design in the UK and key EU states
- Within 12 months of initial disclosure consider whether to apply for UK or Community registered designs.
Want to join The Collective, and contribute to the debate?
Email us at: The.Collective@lewissilkin.com