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Immaterialrättsligt skydd för modeprodukters utformning

Rydebjörk, Anna (2008)
Department of Law
Abstract
The Swedish fashion industry has become a prosperous and constantly growing industry with great sales proceeds and turnovers. The interest for fashion has increased both amongst the general consumers as well as in the media and the authorities. Even though the industry is under growth, many fashion designers are struggling to get established on the market. These designers can´t profit on strong and well-known trade marks. The design of their products bears a large economic value, why it is important that the design is protected from unauthorized reproduction. Counterfeiting and reproduction of original fashion designs is a huge problem in the fashion industry, and can be devestating for products that are new on the market, but because of... (More)
The Swedish fashion industry has become a prosperous and constantly growing industry with great sales proceeds and turnovers. The interest for fashion has increased both amongst the general consumers as well as in the media and the authorities. Even though the industry is under growth, many fashion designers are struggling to get established on the market. These designers can´t profit on strong and well-known trade marks. The design of their products bears a large economic value, why it is important that the design is protected from unauthorized reproduction. Counterfeiting and reproduction of original fashion designs is a huge problem in the fashion industry, and can be devestating for products that are new on the market, but because of the character of fashion design the legal protection can´t be too wide. Too wide intellectual property rights can have consequenses for the free competition and prohibit designers to seek inspiration in other designs. The inspiration is important for the industry, without it there would be no such thing as fashion. The legal protection of design is also important in case of dispute. In these cases the IP right can be valuable as a piece of evidence. IP rights are also efficient when it comes to commercializing the design by transfering the right or licensing the right to use the design. An IP right can in those cases generate more royalty. It is important that the legal protection of design is well functioning and easliy applied. A fashion design can be protected as applied art through the Swedish Copyright Act. The basic requirement for copyright protection is originality. Fashion designs can also be protected under design law both as a national design right and as a community design through the Councils Regulation on Community Design. The requirements that designs must fulfill to be protected under national and European design law is the criteria of novelty and the criteria of individual character. The requriements of originality and novelty/individual character may exclude many fashion designs. The purpose of this essay is to examine these possibilities for protection and analyze their applicability and adequacy on fashion design. The question is if there is a suitable protection for fashion design and if so, which kind of legal protection that is. To fulfill this purpose I have to analyse the advantages and the drawbacks of copyright protection and compare them with the advantages and the drawbacks of the legal protection of national and community design. Most fashion designs benefits from a legal protection that comes without formalities and that does not require registration to be valid. Neither the unregistered community design nor the copyright protection requires registration and can therefore be suitable for fashion designs. The drawbacks are that an unregistered protection does not presume that the IP-right is valid or even existing. The unregistered community design seems to fulfill the need of protection of fashion designs better than copyright protection. The requirement of originality means that the design has to differ, not only from prior art (as the requirement of novelty and individual character implies), but also from any possible design created in the future. The requirement of originality can therefore exclude many fashion designs. It is not only important that the legal protection of fashion design is applicable in theory. To function in practice it is important that fashion designers are aware of their IP-rights and the possibilities to prevent others from using their designs. Increasing the IP-awareness is something for both the industry and the legislator to work on. (Less)
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author
Rydebjörk, Anna
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Immaterialrätt
language
Swedish
id
1561639
date added to LUP
2010-03-08 15:55:29
date last changed
2010-03-08 15:55:29
@misc{1561639,
  abstract     = {The Swedish fashion industry has become a prosperous and constantly growing industry with great sales proceeds and turnovers. The interest for fashion has increased both amongst the general consumers as well as in the media and the authorities. Even though the industry is under growth, many fashion designers are struggling to get established on the market. These designers can´t profit on strong and well-known trade marks. The design of their products bears a large economic value, why it is important that the design is protected from unauthorized reproduction. Counterfeiting and reproduction of original fashion designs is a huge problem in the fashion industry, and can be devestating for products that are new on the market, but because of the character of fashion design the legal protection can´t be too wide. Too wide intellectual property rights can have consequenses for the free competition and prohibit designers to seek inspiration in other designs. The inspiration is important for the industry, without it there would be no such thing as fashion. The legal protection of design is also important in case of dispute. In these cases the IP right can be valuable as a piece of evidence. IP rights are also efficient when it comes to commercializing the design by transfering the right or licensing the right to use the design. An IP right can in those cases generate more royalty. It is important that the legal protection of design is well functioning and easliy applied. A fashion design can be protected as applied art through the Swedish Copyright Act. The basic requirement for copyright protection is originality. Fashion designs can also be protected under design law both as a national design right and as a community design through the Councils Regulation on Community Design. The requirements that designs must fulfill to be protected under national and European design law is the criteria of novelty and the criteria of individual character. The requriements of originality and novelty/individual character may exclude many fashion designs. The purpose of this essay is to examine these possibilities for protection and analyze their applicability and adequacy on fashion design. The question is if there is a suitable protection for fashion design and if so, which kind of legal protection that is. To fulfill this purpose I have to analyse the advantages and the drawbacks of copyright protection and compare them with the advantages and the drawbacks of the legal protection of national and community design. Most fashion designs benefits from a legal protection that comes without formalities and that does not require registration to be valid. Neither the unregistered community design nor the copyright protection requires registration and can therefore be suitable for fashion designs. The drawbacks are that an unregistered protection does not presume that the IP-right is valid or even existing. The unregistered community design seems to fulfill the need of protection of fashion designs better than copyright protection. The requirement of originality means that the design has to differ, not only from prior art (as the requirement of novelty and individual character implies), but also from any possible design created in the future. The requirement of originality can therefore exclude many fashion designs. It is not only important that the legal protection of fashion design is applicable in theory. To function in practice it is important that fashion designers are aware of their IP-rights and the possibilities to prevent others from using their designs. Increasing the IP-awareness is something for both the industry and the legislator to work on.},
  author       = {Rydebjörk, Anna},
  keyword      = {Immaterialrätt},
  language     = {swe},
  note         = {Student Paper},
  title        = {Immaterialrättsligt skydd för modeprodukters utformning},
  year         = {2008},
}