Tag Archives: Manufacture

Protection of clothing IP

Articles imagesA number of businesses in South Africa are related, directly or indirectly, to the design and manufacture of clothing, garments, apparel and fashion accessories. For these companies the issue of protection of Intellectual Property presents a number of challenges that other manufacturing sectors do not face.

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 IP which can be used. For instance, clothing design generally occurs in a space where mass manufacture limits the available copyright that can be applied. The clothing industry is also a relatively mature technological space, which significantly limits the scope of protection which can be obtained. By the same token, however, a small difference from the prior art (such as a single distinguishing feature) can form the basis for a successful application.

With these issues in mind, there are still a number of avenues open for protection of IP in the clothing and fashion industries. Where a technological innovation is present that sufficiently differentiates an invention from the prior art, protection by means of patent may be used. Designers or manufacturers seeking to protect only the visual aspects of their products may instead rely on registered designs and trademarks.

Registered designs, like patents, are territorial in nature and require novelty. Here this means that the design itself must not form part of the state of the art prior to registration or release. Registered designs are also required to be original or not commonplace in the art, both of which can be broadly understood as meaning that the design must be the original work of the applicant.

Once granted, registered designs can provide a number of advantages for designers seeking to protect a product; as they are relatively cheap to lodge and can be rapidly used to provide protection. In addition, an applicant can register a design up to six months after it is released to the public. Registered designs can also be applied for a number of products common to the clothing industry; including the garments themselves, fabric patterns, and logos or visual designs applied to garments. Finally, registered designs can be applied to sets of items in certain circumstances.

While registered designs can protect the product itself, trademarks allow a designer or manufacturer to protect their brand. Here the purpose of a trademark is to protect a ‘mark’ (defined as any sign capable of graphical representation) for the purpose of distinguishing goods and services from one another. Trademarks are therefore required to be distinctive in relation to similar goods and services, and must be either in use or intended for use as a trademark.

Trademarks, once registered, have significant advantages over other forms of IP protection. They 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 also (theoretically) last for as long as it is renewed. Finally, trademarks may be applied concurrently with registered designs where logos are concerned. However, the registration of trademarks has significant time and cost implications.

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 simply forgo design protection in favour of trademarks. A careful mixture of approaches may still, however, yield the best results when judiciously applied. Patents may be considered for specific cases where critical technology is concerned, while registered designs may be applied more broadly to individual designs or sets of similar designs. Trademarks, in turn, may be used to protect the brand the products reside in, and may be augmented by other measures such as defensive company name registration.

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.

For more information, please contact:

Candidate Attorney
Department: Patents
Tel: +27 11 324 3031
Email: thomass@kisch-ip.com

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).


Are you in control of your Know-How?

DMK-a2bKnow-How in the form of operational information and data lies at the heart of a business and this Know-How forms the back bone of the application, use and commercialisation of the other forms of intellectual property within an organisation.  For example, the patents protecting your products are used together with the data packs which contain the detailed information which is used to manufacture the products.

Know-how can be defined as “confidentially held”, or better, “closely held” information in the form of unpatented inventions, formulae, designs, drawings, procedures, manufacturing data packs and methods, together with accumulated skills and experience in the hands of a company’s employees. Know-How not only assists companies with the manufacture of its products and rendering of its services, but also constitutes a competitive advantage.

Far too often the recordal and protection of Know-How is neglected by companies. Frequently, valuable Know-How of a business lands up in the hands of a few key employees and the employer has little knowledge, possession or control of such valuable Know-How. This exposes companies to industrial espionage, loss of a valuable asset or duplication of research and development.

In most instances a significant amount of time or money has been incurred to develop and create such Know-How, yet the management and control thereof is neglected. If Know-How is not adequately managed not only is a company exposed, but the value of the Know-How can’t be determined and unlocked.

Know- How can acquire additional protection if it stays secret. A trade- secret is Know-How which is secret, and if shared such sharing must be done in a restrictive and confidential manner and which imposes an obligation on the receiving party to keep it secret.

Certain kinds of Know-How are inherently confidential. This will be the case if the Know-How is confidential in nature, it is kept confidential or, in the case where it is disclosed to another party, it is only disclosed in circumstances which makes it clear that the Know-How is to be treated as being confidential.

You need to determine how to protect your Know-How and how to use it without undermining the secrecy which makes it valuable in the first place.

Know-How can become lost to an organisation where the diligent recordal of the Know-How is not managed. In order to protect and manage Know-How, it is necessary to develop standard operating procedures, which will be continuously applied in all projects so as to maximise the capturing of Know-How. Summaries of the Know-How should be periodically circulated to management.

The Commercial Department at DM Kisch is dedicated to helping you to protect your Know-How as part of those intangible assets that help you to stand out from your competitors.  We are able to advise clients on document retention and security policies; confidentiality and non-disclosure agreements; and assisting clients with enforcing the protection of their Know-How.

For more information, please contact:

Director & Head of Commercial Department
Department: Commercial
Tel: +27 11 324 3025
Email: kevind@dmkisch.com

Author: Kevin Dam

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.