Combining community design and European Union trade mark rights to defend designs in the fashion industry

Abstract

‘Overlaps in themselves are not a problem, it is their potential to frustrate the balances of each specific IP Right that poses new challenges and requires a horizontal approach.’ – Prof. Dr. Annette Kur Every fashion item is the intellectual property of its designer or company. However, each intellectual property right was created with the objective to protect a particular subject matter, with an internal balance which respects both the interests of the right holders and those of the users. European Union Trade Marks were intended to identify the origin of the product and Community Design rights were established to protect the appearance of the product. This dissertation aims at exploring the manner in which European Union Trade Marks and Community Design rights protect the visual appearance of fashion designs. It then focuses on the advantages and disadvantages presented by the use of such rights in the protection of fashion design. Against this backdrop, the author considers how the lack of regulation in the area of intellectual property right overlaps has led users to register their fashion designs using both rights. Additionally, the dissertation will analyse the legislation and jurisprudence which has recognised or regulated the overlap between both intellectual property rights. The main focus of the dissertation is therefore an assessment of the present legislation, or lack thereof, regulating the overlap between European Union Trade Marks and Community Design rights. In this respect, the author examines the issues arising out of such overlaps and to what extent the EU would benefit from the introduction of external mechanisms which can regulate the potential issues arising out of such overlaps.