The fashion industry is one that is bursting through the seams with new inventions springing up ever so often. As these new inventions spring up, though, many others are tempted to copy them and make them theirs, so, how can a fashion designer protect their genius inventions from becoming commonplace?
This week, we spoke with Corporate and Commercial Lawyer, Oluwatosin Adegbesan, on Intellectual Property Rights and the Fashion Law in Nigeria and what they mean for fashion designers.
Ms. Oluwatosin Adegbesan is a Corporate and Commercial Lawyer that caters to startups, SMEs, and property law, both tangible and intangible. She is a fashion lover, creative enthusiast, and businesswoman. Oluwatosin is also the Founder of startup fashion brand Teimams which specialises in bespoke and ready-to-wear outfits for the modern woman.
What is Intellectual Property Right?
According to her, “Intellectual property right (IPR) is the ability to claim ownership over the property created by one’s intellect.” IPR usually gives the creator an exclusive right over the use of his/her creation for a stipulated period.
Any new design or invention by a fashion designer can be stolen and registered by someone else as their invention and the law will support that person because the first to register an invention has legal rights over it.
Types of IPR Relevant to Fashion Designers In Nigeria
There are 3 types of intellectual property rights relevant to fashion designers in Nigeria: Copyright, Trademark, and Patent.
Copyright is the exclusive rights granted to the creator of an original work. It also simply means the right to copy. Copyright gives the owner the exclusive right to authorize and to prohibit certain uses of his work by others or competitors
Trademark is described as a mark, logo, or sign which is used in the course of trade or business, to identify goods or services emanating from a particular provider and to separate them from another provider’s product. Trademark is often called ‘brand’. For example, the trademark of Nike is the ‘swoosh’ symbol you see on their products.
A patent is an exclusive right granted over the product or process of the invention of a persoņ or a group of people.
What are the Criteria for Registering the IPR of a Fashion Designer?
The criteria needed for registering copyright, trademark, and patent differ slightly;
For copyright, according to section 1(2) of the copyright act, the work must be original and fixed. If it doesn’t fulfil these two requirements, it cannot be registered as a copyright.
For a work to be considered original, it means that it has never been done before and it is not copied. Fixed work is one that is embodied in tangible, stable, and concrete form, these works must be embodied in such a way that they can be reproduced, communicated, and perceived.
Works that satisfy these requirements enjoy automatic copyright protection, without the need for registration or compliance with any formal or procedural rules. However, the Nigerian Copyright Commission (NCC) provides owners of copyrights the option to deposit a copy of their works with the NCC and receive a certificate which serves as notification of the existence of the work to the general public.
For a work to be registered as a trademark, it has to be any mark that does not conflict with certain rules. The prohibitions are the criteria. These prohibitions include;
- Marks which are deceptive or scandalous, contrary to law or morality,
- Names of chemical substances,
- The Nigerian Coat of Arms or other emblems of authority,
- Patent, copyright, red cross, and other similar words,
- Identical and resembling trademarks that would confuse customers.
For a work to be protected by patent in fashion designing, the product must meet the provisions of Section 1 of the Patent and Design Act which states that;
- It has to be new, results from inventive activities, and is capable of industrial application, or
- It should constitute an improvement upon a patented invention and is also new, results from inventive activities, and is capable of industrial application.
Before an IPR is Registered, How can Fashion Designers Check if it Has Already Been Taken?
Fashion designers can find out if a work has already been registered as an intellectual property right by going to the registry and having a search done to clarify if the work is already an IPR or not. This work similar to the Corporate Affairs Commission (CAC) that deals with business registration.
Can IPR be Transferred from One Fashion Designer to Another?
Just as the name implies, intellectual property (IP) is a property and it has proprietary rights. It can be transferred just like any other property.
For example, lands, chattels, etc can be transferred so a fashion designer can transfer his/her rights over any creation to someone else. This can happen through a will or as a gift.
What are the Steps Fashion Designers can Take to Maintain the Registration of their IPR?
There are terms (periods) that a person can hold the right to his/her IP. The duration of time for copyright is 70 years while it is 20 years for a patent.
During this period, the IPR of a fashion designer is automatically protected and there is no need to do anything to maintain its registration. For patent, however, there is an annual fee that must be paid to the commission during this time.
If the patentee defaults in the annual payment of the renewal fee, the patent lapses. After 6 months of grace, if it is still not renewed, it cannot be renewed again and the patentee loses ownership of that patent.
Why is it Important for Fashion Entrepreneurs to Protect the IPR of their Startup Fashion Business?
For a startup fashion business
1. To Preserve your Brand
Seeing as branding is an effective tool to promote a fashion business, especially at the startup stage, protecting that brand is important. As a fashion designer, you should protect your brand under the law to promote it and ensure no one steals your brand identity after all the hard work you put into building the business.
2. To Protect the Economic Value of your Innovation
From an economic point of view, it is important to register your fashion design to protect it. Protecting it means you are protecting the private economic value of your innovation.
3. To Protect your Innovation from Theft
If as a fashion designer, you have invented something new and it is something you use as the unique selling point (USP) of your fashion brand, it is important to protect it. Not protecting it means that someone else can steal it and register it as their innovation and the law will support that person because it is the first to register that has the right to that invention.
The only exception to this rule is rights under copyright as they are automatically protected by law.
What Types of Rights can Fashion Designers Protect?
There are so many aspects of fashion designing that can be protected. Things like Fabric Design, Marks and Colour Splash on an Outfit, the Style of the Pattern used in Designing an Outfit, and also the Method of Achieving a result in an Outfit can be protected.
For example, House of Deola Sagoe invented the style and pattern of fabric used in her Komole collection and she has patented it. Any exploiter who tries to imitate her creation will be appropriately punished.
Also, an improvement in any invention can be protected. For example, if Mr A uses sack to make rugged pants, he can protect it. Even though a sack is not a new invention, using that material to make an outfit is an improvement on the invention and so it can be protected under IPR.
What are the Steps a Fashion Designer can Take Against Someone that Infringes on His/Her IPR?
The law provides remedies to protect IPR in such scenarios, these remedies can be either criminal or civil remedies.
In civil law, the court can grant an injunction to prohibit the exploiter from using the IP of a fashion designer. Other remedies include Delivery Up, Anton Pillar Order, Mareva Injunction, and Damages.
This simply means that all the money or monies made by the infringing party would be calculated and delivered up to the owner of the IP.
Anton Pillar Order
The Anton Pillar Order is an order given by the court to raid the shop or outlet of the infringing party to seize all the goods found in there.
In this case, damages are paid if the owner of the copyright can calculate the loss he/she has suffered due to the infringement and such amount would be levied against the infringing party.
How Well Does the IPR Law Function in Nigeria?
In Nigeria, the IPR law is an aspect of the law that is not exploited by those it pertains to. The rights are available and the protection to those rights by the applicable and relevant laws is available as well but a lot of people are not aware of how important this law is.
Many fashion designers assume that protection of IPR is meant for just big fashion houses that have unique products or just authors but this is not so. The more fashion designers are enlightened about these rights the more functional they become.
In the creative industry in Nigeria, it is mainly the entertainment sector that is picking up on these laws and many lawyers are out there pushing this sector which has resulted in many record labels, musicians, producers, and songwriters knowing and protecting their rights. Other creatives, like fashion designers, however, are lagging. I believe the more people are aware the more these laws and protection would be functional
How Effective is the Fashion Law in Nigeria?
For now, laws exclusive to the fashion industry are not in existence but some provisions cover the fashion industry, and that includes rights in IP. These laws, however, are as effective as every other law of the Federation and are available for protection but the question is, “How are fashion designers embracing these laws?”
Most fashion designers are mainly concerned about creativity and they forget that creativity can be frustrated by another who is just smart and business savvy. There is a difference between creative minds and business minds, and fashion designers need to have both to excel in the industry.
If the fashion industry can learn the difference between these mindsets then there would be a change in the fashion industry. Every fashion entrepreneur needs to learn that the fashion industry has different areas of expertise and different rights can be protected based on these expert areas.
In closing, Ms Oluwatosin said, “There is a lot to be exploited in the fashion industry that if managed appropriately can help to maximise income for a fashion business.”