Intellectual Property for SMEs in the textile industry

intellectual

Aleck Ncube
INNOVATION in the textile and fabric industry has revolutionised its three main sectors — clothing, home and technical textiles over the last 50 years.

There can be no doubt of the tremendous value of intellectual capital in the textile and fabric industry. Many of the small to medium-sized enterprises (SMEs) in the industry however pay little attention, if any, to protecting their intellectual assets.

In the prevailing business environment, the primary source of competitive advantage for all businesses is innovation and original creative expressions.

SMEs need to identify such valuable intangible assets in a timely manner, determine their business relevance and conduct cost-benefit analyses to determine, which of these should be protected and leveraged by using the tools of the intellectual property (IP) system.

Fashion is at the heart of the textile and fabric industry. Fresh, new fabrics designs are introduced every season. Among the range of IP tools, the protection of industrial designs — also simply referred to as designs — is  very relevant to the fashion industry. Registering a design helps the owner to prevent all others from exploiting its new or original ornamental or aesthetic aspects, be they three dimensional features such as attractive shapes, or two-dimensional features such as aesthetically pleasing textile prints.

The fashion and clothing industry invests huge sums to create new and original designs each season. Despite this significant investment, little use is made of relevant national and/or regional design law to register and protect these designs. In some countries, they may be adequately protected by copyright law as works of applied art.

However, a frequently cited explanation for not registering designs is that the short product life cycle does not justify the time and financial cost involved.

In practice, the arguments for registering a new design have to be considered on a case-by-case basis.

Registering a design should help to deter others from copying it, and help to fight unscrupulous competitors who do so. Industrial design is relevant to a wide variety of products of industry, fashion and handicrafts from technical and medical instruments to watches, jewelry, and other luxury items; from household products, toys, furniture and electrical appliances to cars and architectural structures; from textile designs to sports equipment.

Industrial design is also important in relation to packaging, containers and “get–up” of products. As a general rule, an industrial design consists of: three-dimensional features, such as the shape of a product, two-dimensional features, such as ornamentation, patterns, lines or colour of a product or a combination of one or more such features.

1. What rights are provided by Industrial Design protection?

When an industrial design is protected by registration, the owner is granted the right to prevent unauthorised copying or imitation by third parties. This includes the right to exclude all others from making, offering, importing, exporting or selling any product in which the design is incorporated.

2. What can be registered as an Industrial Design?

As a general rule, to be able to be registered, a design must meet one or more of the following basic requirements, depending on the law of the country:

The design must be “new”. A design is considered to be new if no identical design has been made available to the public before the date of filing, or the application for registration. The design must be “original”. A design is considered original if it has been independently created by the designer and is not a copy or an imitation of existing designs.

The design must have “individual character”. This requirement is met if the overall impression produced by a design on an informed user differs from the overall impression produced on such a user by any earlier design, which has been made available to the public.

While fashion trends may come and go in the blink of an eye, some never pass. Many items, along with the high quality fabrics and textiles used to make them, become classical pieces. There is a one-year waiting period at the French fashion house Hermès for the classic “Kelly” Bag, which grew to fame in 1956 after Princess Grace Kelly of Monaco appeared carrying the bag on the cover of LIFE Magazine. Each bag is made to order in the specific colour and textile or leather requested by the client.

Another example, the plaid designed Burberry fabric still seduces new generations of shoppers many decades after it was first created. For fashion items with a long life span, filing an application for a registered industrial design may be the best way to prevent others from using the design.

It is possible to request at the time of filing — not after — that the publication of the application be deferred for up to 30 months. This is a particularly useful feature, offered under the Hague System, the EU community mark, and many national systems, for those who may want to keep their design secret until it comes to market.

Technical innovations in the textile sector can be protected via patents — and this is one way to put a textile producer ahead of the competition. A portfolio of patents signals a company’s technical superiority, for example in inventing new fabrics that do not crease, are softer, more weather-resistant, have greater elasticity, etc. Such a patent portfolio can help attract business partners or investors.

In the clothing industry, as in the furnishings and technical textile industries, clever businesses capitalise on their brand equity. They develop a bond with their customers who come to associate their products with good design, or quality and workmanship, or outstanding technical properties. Trademarks are the most obvious means of distinguishing one company’s products from those of their competitors. Trademarks can be protected through registration, and the associated artwork by copyright law. Trademarks are just as important for a small or start-up company as they are for the big names in the business.

Aleck Ncube is an Intellectual Property Scholar. He can be contacted on [email protected]

Follow me on Twitter: @aleckncube

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