Fashion police - protect your products, protect your brand

© Allan Swart – 123RF.com

The issue of counterfeit goods has surfaced again in South Africa, with 2015 seeing a number of raids on well-known counterfeit markets in Gauteng and the Western Cape. In each case, the goods recovered were worth at least hundreds of thousands of Rands, with a raid in Belville netting R20 million worth of goods in a single take.

Given the slow growth experienced in the retail sector this year, these events highlight the importance of holding and protecting intellectual property as a means to defend against unlawful competition, copycat goods and forgeries.

For the clothing industry, which sees a disproportionate share of losses due to counterfeiting, protecting intellectual property presents a number of challenges. Clothing design and manufacture is a rapid process, with even small labels being expected to launch relatively large product ranges on a seasonal basis. This makes blanket protection of products prohibitively expensive and places severe constraints on the forms of intellectual property protection, which can be used. For instance, clothing design generally occurs in a space where mass manufacture prevents copyright being applied in the same way as it is with art items. The clothing industry is also a relatively mature technological space, which significantly limits the scope of protection, which can be obtained by means of patents.

Given the short lifespan of individual clothing designs when compared to the long lifespan of a brand or label, many existing fashion houses have chosen to forgo design protection in favour of trademarks.

• Trademarks can be used to protect against the dilution of the brand preventing copycats from applying confusingly similar marks to their products. A trademark can also be used to expedite the seizure of counterfeit goods, as these are invariable stamped with a copy of a well-known logo.

• Designs, on the other hand, can be used to protect specific items or ranges from being mimicked by competitors which helps to strengthen the brand by protecting distinctive elements, allowing the manufacturer to build and conserve a specific 'look'.

Options for protecting your brand

There are still a number of avenues open for those seeking protection.

Registered designs, for instance, can protect the visual aspects of a product. They are cheap to lodge, quick to process and an applicant can register a design up to six months after it is released to the public. At present, the trend in the clothing and fashion industries is to register designs in respect of specific items (such as shoes, bags and bottles) which include easily distinguishable features or patterns that are repeated across a number of products. For instance, the tread patterns on the soles of shoes are often heavily protected and jealously guarded by manufacturers in order to give their ranges a common aesthetic. Logos can also be cross protected by means of a class 32 design registration.

While registered designs can protect the product, trademarks allow a designer or manufacturer to protect their brand directly. The purpose of a trademark is to protect a 'mark' for the purpose of distinguishing goods and services from one another. Trademarks, once registered, have significant advantages over other forms of IP protection.

Trademarks also apply to the brand rather than a given product and can serve to ward off competing services, which would seek to capitalise on the brand's reputation by means of mimicry or misrepresentation. A trademark, once filed, can theoretically last for as long as it is renewed. Trademarks may also be applied concurrently with registered designs where logos are concerned. However, the registration of trademarks has significant time and cost implications.

Ultimately, however, a careful mixture of approaches may still yield the best results when judiciously applied. In deciding the right mix of protection to use, the designer or owner should carefully weigh the time and cost of protection against the benefits it provides on a case-by-case basis and apply accordingly.