Just reading through the summary of intellectual property rights and noting 'surface decoration' in both copyright and design right.  For clarity can you or someone please advise me what constitutes 'surface decoration' in clothing.  Zips for instance. 

As they are often essential to the general working of a piece of clothing but sometimes act as optional working in clothing, i.e. on the sleeve so that a sleeve can be rolled or folded, would a zip ever constitute 'surface decoration', or is it just the style of zip that would be called 'surface decoration'?  Also how would the angle of a zip is considered? As stitching is essential for a garment but can also be decorative, what kind of stitching would come under 'surface decoration'.  How are colours received?  Is a range of colours design, a single colour or a shade? - Cynthia Wilkinson, ACID Member, Crewroom http://www.crewroom.biz/

ANSWER:

It is a very complicated area of the law and there is no simple answer I am afraid.  It is the case that there are 5 rights which are relevant which can be split into 3 categories.  They are;

·  Copyright

·  United Kingdom unregistered design right

·  United Kingdom registered Design Right, Community Registered Design Right and Community Unregistered design Right

 

In summary it will depend on what the decoration is intended for as to which rights may apply.  It is important to understand what the law deems to be surface decoration first.

The law is not settled but there are 2 elements to decide upon.  The first is does the element form part of the design or is it incidental to it; so in the above example the main zip would be form part of the design but the zip on the sleeve would be a decorative element.  In legal terms the main zip would be “Shape and Configuration” and the sleeve zip would be an adornment and as such would be surface decoration.

So the key is to identify what function the element of the design has as to whether or not it is surface decoration.  The courts have said that surface decoration can be 3 Dimensional as well as 2 Dimensional.  So why is it important to decide?

 

 

Right

 

 

Shape of Article?

 

 

Surface Decoration?

 

Length of Right

Copyright

Maybe

Maybe

Life of the Author  +70 years after their death

 

UK UDR

Yes

No

10 years from the end of the year in which the article

 

UK and Community Registered Design Right

 

Yes

Yes

25 Years

Community UDR

 

Yes

Yes

3 Years

 

Copyright

It is the case that copyright and design right can exist in the same article.  Copyright exists if the work is an original work and qualifies an artistic work.  that means it must not be merely functional but have a degree of artistic merit.  If it qualifies as an artistic work, either the article itself or the surface decoration then copyright will apply.

 

UK Unregistered Design Right.

At the moment this specifically excludes surface decoration.

Registered Design Right and Community Unregistered Design Right

The definition of design in these areas is "the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or ornamentation."  So in the above question both zips will be covered irrespective of artistic merit.

So why so complicated?

Well it is because community unregistered design right only lasts for 3 years and a lot of designers do not seek a registration of their design.  registrations cost money whereas copyright and unregistered design right do not require any formality.  In the main, once a design is over 3 years old it is then necessary to rely on UK UDR and Copyright and so there has to be an analysis of the elements of the design to decide whether it is “shape and configuration” or “Surface Decoration”.

Anyway in my opinion in the above question the following apply;

            

Element

Surface

Decoration

Shape and

Configuration

Main Zip

Yes

Yes

Sleeve Zip

Yes

No

Stitching

Yes

No

Colour

Yes

No

 

 

Last update on 24.09.13 by .

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