Luxury fashion e-commerce
Luxury fashion e-commerce brand protection is one area of speciality that requires some finesse. We also advise beauty and lifestyle businesses which can be related to fashion. Specialisation in preparing website terms and conditions, registering trademarks and copyright, and advising on the on-line brand protection of textile goods, clothing, fabric design, jewellery, beauty, cosmetics and providing fashion information, means that we have built up the knowledge base over the years to maximise on-line brand protection.
Here are six tips if you are in the luxury fashion e-commerce and beauty industry and are concerned about on-line brand protection.
E-commerce website terms and conditions
Make sure you get your website terms and conditions right. Your website terms and conditions relate to your trade mark, copyright and design right registrations. There are several issues that the website terms and condition need to address if you want to have the best chance of dealing with intellectual property infringement. Do not think that website terms and conditions are just a rubber stamping or box ticking exercise. A returns policy is not the only important issue your website terms and conditions should cover. What does your intellectual property policy say about your trademarks? Remember the Internet is global, so while you may only be targeting a small region including for example Manchester and the surrounding area, a business in Belgium with a similar mark could be confused with you. For more information about confusion and trademark infringement have a look at s5(2) of the Trade Mark Act 1994 – Trade Mark Law.
2.1 Get the right registration. Don’t just assume that a text logo has been registered in all colours just because it has been registered in black and white. For example, you have to register the text logo as you actually use it. So if you register a gold logo and use a pink version of the same logo, you will not have total protection for the pink logo.
2.2 Don’t just register the text with the logo thinking that you will get total protection over the text. You will not. Remember that the object is to have total protection not just to save money on registrations. It is a total waste of spending any money at all if you do not achieve your objectives in making the registration in the first place.
Luxury fashion e-commerce and NICE classifications
The following NICE trademark classifications“NICE Classifications” come up most often for us.
Goods – Classes
Services – Classes
Obviously there are a lot more possible specifications in luxury fashion and beauty e-commerce such as hair pieces and wigs in class 26. The above just gives a flavour of the typical classifications.
Copyright and Fixation
4.1 One of the issues that has arisen with luxury fashion e-commerce is fixation. In order for copyright to subsist in certain works there must be fixation. This is not a requirement in some works which could not have been created without being fixed in some form like broadcasts for example. However literal works must be fixed in some form they cannot be ephemeral that is they must exist (can’t just be an idea in your head) or, exist only temporarily. This also applies to artistic works. Artistic works include graphic works, photographs, sculpture or collage, irrespective of artistic quality, or, works of artistic craftsmanship. So the packaging of your goods may be subject to copyright.
4.2 Additionally, in luxury fashion e-commerce, the designs of your fabrics may be subject to copyright, unregistered design rights and may also be registered nationally as registered designs. This is interesting because the question of what is fixation in the digital world was addressed by the court in the recent case of Abraham Moon & Sons Limited v Thornber & Others.  The main issue in the case was the infringement of fabric design ticket stamps. The decision is of interest to fabric designers and manufacturers, because the Patents County Court confirmed that copying a fabric design can infringe copyright in the “ticket stamp” instructions for the design. This obviously had wider impact for every fabric designer. What was said incidentally by the Court was just as interesting from a digital media perspective. Although the case did not involve David Hockney but the Judge used David Hockney as an example of fixation in the digital world. The Judge commented that if David Hockney where to draw something momentarily on his IPad it nevertheless would be fixation since it would be stored on his computer as digital file and that this was sufficient for fixation. So the tip here for luxury fashion e-commerce businesses is to keep all design notes, and remember that even your digital files are evidence of your designs.
Photographs are protected in the digital world. Electronic images are included in the definition of photographs in s4(2) of the Copyright Designs and Patents Act 1988 (the “Act”). If you have gone to a lot of expense to create your own images that are part of your luxury fashion and beauty brand, then you should protect them by registering them. There is no copyright registration requirement in the UK but as the Internet is global you might consider registration in other jurisdictions.
If you are on a shoe-string budget then the free services provided by the citizens’ advice bureau or the British Library may be more appropriate for you. You will have to pay for research if you want the British Library to research information for you, otherwise it is free to use the library intellectual property section on the second floor. You also have legal templates on-line or some companies offering very low budget bespoke website terms and conditions advice.
If, however, the overall budget for your project is more than £20,000.00 then you should be considering getting reputable professional advice, since getting your strategy wrong will cost you much more in the long term.
Luxury fashion e-commerce requires some mastery, skill and expertise. If you don’t set it up properly you might still succeed but you will not maximise your chances of generating a substantial turnover like a Net-a-Porter.
Taking into account the above tips are a start in the right direction.
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To book a face to face consultation for legal advice about intellectual property strategy, contact a specialist luxury fashion e-commerce lawyer (charge rates may apply and may vary).