Designers have to protect their work. Picture: Wallace Chuck/ Pexels
Fashion is one of the most copied forms of art. Every now and then, designers complain about their designs being stolen or copied.
We’ve seen fashion brands like Shein and Zara being accused of stealing designs, and filing a lawsuit can be a long, daunting process.
Thapelo Mmotong of Adams & Adams advises designers to protect their work before it gets stolen. After all, prevention is better than cure.
“Unfortunately, entrepreneurs in the fashion industry often need more awareness of the benefits of obtaining registered design protection for their creative IP. Most usually, such individuals tend to turn to legal advice only when they face copying of their unregistered IP, which may be too late for preventative measures to be taken,” says Mmotong.
He adds that any design applied to an article of manufacture can qualify for design protection provided that, in the case of an aesthetic design, it is novel and original. In the case of a functional design, the design must be novel and not commonplace.
“Since most IP rights are territorial, corresponding design applications would have to be filed in other territories within six months from the filing date of the South African design application. There are some exceptions to this rule. For example, suppose a product is released to the public prior to filing a design application. In that case, design protection may still be sought in some countries/territories if this is done within a grace period of six/twelve months of the product’s release date to the public, depending on the laws of the countries concerned,” he said.
In 2018, Laduma Ngxokolo of Maxhosa Africa filed a lawsuit against Zara for copying his cardigan designs and applying it to socks.
Zara copied the Maxhosa “Khanyisa Cardigan” which launched at the AFI Fashion Week 2014, formerly known as the Mercedes-Benz Fashion Week Joburg.
“We consulted with Shane Moore and Muhammad Patel from Moore Attorneys, one of Africa’s leading IP law firms, who are handling the matter on our behalf. They have since sent a letter to the parent company alerting them of the copyright infringement and our demands.
“We have taken such steps so as to avoid our works being appropriated and adapted without our consent or permission. Copyright infringement is a matter that we take seriously and fully aware of our intellectual property rights,” said Ngxokolo at the time.
After being slammed with a lawsuit, Zara removed all the copied socks from their online and retail stores.
"Inditex, the parent company of Zara, has the utmost respect for individual creativity and takes all claims concerning third party intellectual property rights very seriously.
“As a preventive action, the process to immediately remove this item, both from stores and online, was activated at the moment this situation was brought to our attention," read the statement released by Zara at the time.
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