Legal Tips for New Fashion & Jewellery Designers

1 July 2015
Posted by Jennifer

1. Spend time choosing the name of your label

Before you decide the name of your label (your ‘brand name’), do some research to make sure that the brand name is not already registered by a third party as a trade mark for fashion or jewellery goods. It would be such a shame to spend all your hard earned start-up pennies on designing your logo, website and other related marketing tools, only to have to change your name once you have launched.

Remember that registering a business name or a domain name does not give you any ownership rights in your brand name. You will only acquire any rights of ownership in your brand name in upon registering your name as a trade mark in the countries you wish to trade in or by acquiring substantial goodwill in the name for fashion related goods and services in the countries you wish to trade in (which usually takes a few years).

Your brand name is one of the most important parts of your business. If you can, put aside some money when setting up your business to register the brand name as a trade mark in Australia. Having a registered trade mark is by far the most effective way of protecting your brand name and preventing other people in your industry from using your trade mark or deceptively similar marks in Australia.  If you wish to trade in another country (i.e. the USA), you will need to consider trade mark registration there as well, as your Australian trade mark will not cover protection in other countries.

2. Put in place agreements with those you are working with

Do you have a business partner? Have you set up a company with a couple of other people?

At the start of your journey together, it can be difficult at the start to sit down and talk about about what happens if things go wrong.  However to help prevent misunderstandings and conflict down the track, we recommend that all people involved in the business, sit down and agree upon written terms as to how the business will be owned and operated.

Some important points to discuss and include in a written agreement are:

– duties of each person
– ownership of the business
– ownership of designs
– division of profits, wages, capital
– process if someone wants to leave business

The agreement does not have to be overly complicated but it is important to ensure all persons involved are on the ‘same page’ before committing time, passion and money to the project.

3. Register any unique designs before you release them to the public

So, you have been working really hard and believe you have a design that is ‘new and distinct’ from anything currently on the market. You are worried that as soon as you release the item, you will have hundreds of copyright cats, ripping off your fabulous design?

Whilst copyright protection extends to artistic craftsmanship (i.e. ‘one-off’ fashion or jewelry pieces) once you start manufacturing such artistic works you cannot rely on copyright law to protect your designs.  As such, before you start marketing or selling the design, you should seriously think about registering that ‘special design’ as a registered design with IP Australia.

So what is a design by law?

A design can be defined as the visual appearance of a product (such as a dress with oversized diamond pockets) and be registered in Australia by IP Australia if the design is deemed ‘new and distinctive’. If you choose to have your design application ‘examined’ and IP Australia decide it is new and distinctive, then you will have a legally enforceable right and can stop other designers from copying your designs in Australia. If you wish to target an international market (i.e. the UK), then you will need to repeat a similar design registration process in the UK.

Beware! Generally once you publish your design (i.e. online or in a catalogue) you loose the right to apply for registered design, so get in early before you tell anyone about it!

4. Know your labeling requirements for clothing

If you are planning on selling clothes, by law you will need to provide the following information to the consumer in a legible and prominent manner, on a label permanently affixed to your clothing items.

1. the name of the country in which the goods were made or produced (therefore, if you have your clothes made in China, this needs set out on the label)

2. a ‘true description’ of the goods…this means a factual description about the nature of the goods (i.e. ‘100% cotton’ on a shirt would be acceptable)

Legal Tips – Written by Jennifer Tutty, Principal Lawyer of Studio Legal. Jennifer is a Melbourne based lawyer specializing in entertainment, fashion and intellectual property law.

For additional information or advice or assistance preparing agreements or registering designs or trade marks, please contact hello@studiolegal.com.au or 03 9029 8424.