cfi-The Look and The Law Aug 09:The Look, The Law & The Knowledge 2009 07/09/2009 13:55 Pag
in the name or get-up arising through use in the UK, there must be confusion or a
likelihood of confusion and there must be damage or a likelihood of damage.
Passing off claims are typically evidence-heavy and so it is very important to keep
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as much material as possible showing use, advertising, sales figures and the like. It
is important to take an assignment of copyright if the trade mark consists of a get-
up or has device (logo) elements and was commissioned.
REGISTERED IP RIGHTS
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REGISTERED COMMUNITY DESIGN
This can exist alongside the Unregistered Community Design Right but gives a
greater level of protection in that:
VENPOR • it gives the owner the exclusive right to use the design in the EU and to prevent
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others from using the same or any design which does not produce a different
overall impression. It is not necessary to prove copying; and
• it lasts for up to 25 years.
There is a “grace period” of one year which starts from the date of disclosure to the
public – any use of the design during that year will not mean that the design is not
novel for purposes of registration.
Procedure is straightforward and relatively quick – an application to register is
submitted to the Office for Harmonisation in the Internal Market (“OHIM”) based in
Spain, a basic examination ensues, the design is advertised and then registered.
Issues of novelty and individual character are left to post-registration challenge by
others.
All in all, a useful registered right to have and a similar UK Registered Design is also
possible.
TRADE MARKS
Trade marks or brands, as they are often called, encompass words or names,
letters and devices through to shapes, colours and even smells! To be registered,
they must be “distinctive“ and not, for example, descriptive – so a trade mark for
“fashion designer” for someone in the fashion business would not be registrable.
As with designs, registration is possible both in the UK and at the EU level by way
of a “Community trade mark” (one application can cover you for all countries in the
EU). Both give the owner the right to prevent unauthorised third parties from using
the same trade mark on the same goods and services. Use of a similar trade mark
on similar goods/services can also be prevented if confusion is likely.
Trade marks are territorial so if you have protection in the UK for your brand it does
not mean you could automatically exploit that name in another country. You would
need to get any suggested name checked out first (called a “prior rights search”).
www.fashionfringe.co.uk
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