Murky Waters of Design Copyright; as the Fashion Industry Works around the Clock to Reproduce the Duchess of Cambridge's Wedding Dress, Marie McMorrow, Intellectual Property Partner at DLA Piper in Birmingham, Looks at the Implications of "Copycat Design" on the Wider Creative Industries
From the moment Catherine Middleton emerged to reveal her stunning wedding dress to the watching eyes of the nation, designers and retailers have worked around the clock to copy the fashion piece of the century.
Designed by Sarah Burton for Alexander McQueen, the dress features ivory satin, with a fitted bodice and nine-foot train, decorated by hand with lace appliqu flowers.
A pounds 349 copy of the dress is already on sale online, while Asda and Peacocks are rumoured to be planning their own high street replicas.
Copycat fashion is not new, and the public has almost to come to expect ''the look for less''.
The Oscars, New York or London Fashion Week or a new collection by a famous designer all lead to magazine features and television programmes that compare designer clothes with high street alternatives, such as ''splurge versus steal'' or Gok's Fashion Fix.
However, in recent years, designers, fashion companies, high street retailers and even supermarkets have shown an increased willingness to pursue those making and selling copycat fashion.
In the last few years, Jimmy Choo obtained summary judgment in the High Court in relation to a copy handbag design, Chloe successfully brought actions against Kookai, Warehouse and Tesco, while Next sued Asda in respect of a number of copycat clothing designs.
The increase in fashion retail litigation is due in part to the ease at which copyists can quickly and effectively market and supply imitation clothing across the globe via the internet and has been further fuelled by the recent economic downturn which has inevitably led to decreased investment in new clothing designs, and an increased demand for alternatives to premium and designer goods.
Companies typically rely on UK and EC design law for protection, which comprises a mix of registered and unregistered rights which differ in scope and duration.
Of particular utility to the fashion industry is the EC-wide unregistered design right which arises automatically and lasts for three years from the date the design is first made available.
It is attractive because a seasonal, fast-moving item such as a dress rarely justifies the time and cost of a formal design registration and, while shorter in duration than its unregistered UK counterpart, it is generally considered to give wider protection.
For example, in contrast to the UK right, surface decoration is capable of protection under the EC unregistered regime and there is no defence of innocent infringement.
Of further importance is the fact that both the UK and EC design regimes protect parts of products as well as the whole product. …