The Metro recently featured an article about a young Dutch woman who had come across her T-shirt designs on Shein. Needless to say they were slightly different. The print was on the back instead of the front, for instance. Still, it was obvious that the shirts were based on her designs. I don't know the situation well enough to say whether or not she could have prevented this, but thinking strategically about design protection in advance can be very helpful when it comes to situations like this. In this blog, I will explain how you go about it.Simply being creative is not enough
If you want to be truly successful with creative designs you will need more than just creativity. You will need a strategic approach to protecting your intellectual property. Intellectual property is not an afterthought. It is simply part of doing business, just like your admin or marketing. You should always ask yourself the following questions first: which designs are most important to my business, how will I be able to prove later that a design is mine, when should I register it and what is my plan of action when it comes to dealing with counterfeiting?
Three options for protecting your product design
Once you have given this some thought it is time to decide what type of protection you want. In the case of product designs you have three options:
1. Copyright
As soon as you create something, you will automatically have copyright on it. That's nice, of course, but in practice the scope of protection is rather limited. When is something creative enough to qualify for copyright? And how do you prove that you are the original creator? That's tricky, for example when the copy is just slightly different.
2. Unregistered design rights
In Europe you automatically obtain these when you bring a product to market. These rights are valid for three years and relate to the overall appearance of your design. However, even in the case of unregistered design rights, you still have to be able to prove that the other party did not come up with the idea themselves but copied yours. It has to involve borrowing – as it is called in technical terms – and that is not always easy.
3. Registered design rights
Registered design rights are the most powerful strategy if you want to protect your design. When you officially register your design, you immediately tell others that it's yours. That will put them off. You will also receive a registration number, which allows everyone to see exactly what you have protected. In order to get protection the design must be novel and original. If someone copies it, the corresponding overall appearance will be enough and you will not have to prove that it is actually a copy.
Strategic use of registered design rights
If you have a unique design of your own which you have already brought to the market you will not be able to file a patent application because the design is already in the public domain. You can however apply for design rights. In Europe, for example, there is a one-year grace period. Although it is preferable to register earlier, it is not too late - you still have a whole year to do so from the moment the design has been disclosed to the public.
You also do not have to decide immediately where you want protection. After the initial registration you have six months to register your design in other countries. This gives you some time to see whether your design is successful.
Shein is not above the law
Back to the woman who was duped by Shein. I suspect that she does not have registered design rights. That does not mean there is nothing she can do as she claims in the article. Even big companies can be held accountable for infringement. In fact, there is a special page on Shein's website on which you can report infringements. They too are not keen on damage to their image caused by media attention surrounding infringements. Often the mere act of reporting copying is enough to have the item in question removed from sale. Only a small percentage of these types of disputes end up in court. The majority of them are simply resolved by means of an exchange of letters or a settlement. So she does not have to be left empty-handed, but with some thought about her approach beforehand, she could have been in a stronger position.
From creative to commercially successful
Intellectual property is an important part of your business strategy. It helps you move from creative to commercially successful. There are various options available, each with their own timing, disadvantages and strengths. Every design is different, so the best protection approach also varies from case to case. The trick is to think carefully about which option best suits your particular situation. If you would like help with this, please feel free to contact me. I would be happy to help you!
