Intellectual property is a key asset in the fashion industry. The design created by the author constitutes intellectual capital which requires legal protection and effective management in order to increase its competitive advantages in the fashion market. The Russian legal system has specific instruments at its disposal to protect unique artistic designs and design solutions. It may sometimes be more effective to protect an article or a number of its elements simultaneously by several instruments. The article briefly discusses these instruments.
The results of intellectual labour which enjoy legal protection include graphic works, designs (of jewellery, garments, accessories, and their elements), as well as other works of visual arts (e.g. clothing prints) and applied arts (e.g. embroidery, applique, and colour-making).
Articles which have originated as a result of creative work and which are expressed in any objective form are protected by copyright law.
Copyright protection of the above items does not require state registration and generally lasts for the lifetime of their author plus 70 years from January, 1 of the year following the year of the author's death.
Patent for inventions
A technical solution relating to a product or a method (a process) of actions performed in respect of a tangible object by tangible means (including the use of a product or a method for a particular purpose) may be registered as an invention. In the fashion industry, this may cover a technology for producing fabrics or materials, or a technology for sewing and manufacturing.
To obtain legal protection, the invention should be registered with the Federal Service for Intellectual Property, Patents and Trademarks (known by the Russian abbreviation Rospatent) and should satisfy the following requirements of patentability: it is novel, displays a certain inventive level, and is capable of being used for industrial purposes.
The effective term of the exclusive right to an invention is 20 years starting from the filing date of the patent application with Rospatent, provided that it also meets the requirements established by the Civil Code ofthe Russian Federation (Civil Code).
Patent for Industrial Design
An artistic and design solution for a factory-made or home-made article can be protected under patent law. In particular, this may concern fabric, product models, accessories, separate garments, kits and other design solutions.
To obtain the grant of a patent, a legal entity or an individual must file an application with a patent office. An industrial design enjoys legal protection if it is novel and original in terms of its significant features. The application is submitted for one item or for a number of individual items that together from a unified creative concept.
The effective term of the exclusive right to an industrial design is 5 years with the opportunity of repeated renewals for further periods of 5 years but up to a maximum of 25 years in total. The application should be submitted within a twelve-month period after the information is disclosed, for instance, at an exhibition or fashion show.
As of 26 June 2019, when amendments to Part IV of the Civil Code came into force, the Russian law now allows the publication of information on industrial design applications at the applicant's request, and provides for temporary protection for industrial designs from the date of such publication until a design patent is granted.
Temporary protection will be granted based on a combination of the design's essential features, as displayed on a graphic representation of its appearance.
Applicants who choose to publish information about their applications will be allowed to seek monetary compensation for unauthorised copying or imitation of their designs if this occurs during the period between the application's publication and the issue of a design patent.
Following Russia's ratification of the Geneva Act of the Hague Agreement, as of 28February 2018 foreign companies and designers can now also seek design protection through the Hague System for the International Registration of Industrial Designs in Russia.
A word, image, 3-dimensional designation or other designation, or combinations of such elements, may be used as trademarks. Unconventional trademarks (e.g. colour, positional, olfactory, etc.) are distinguished as a separate group.
In the fashion industry, the registration of what is known as a ‘series of trademarks’ is widespread. A series of trademarks means a set of registered designations protecting the key marketing identifiers of a brand (verbal, graphic, and colour).
Legal protection can cover only those goods and services which are included in an application.
The main condition for the grant of legal protection to a trademark is that the trademark should be distinctive. However, Rospatent also checks other conditions that are required by the Civil Code. In particular, the trademark should not run counter to the public interest, to the principles of humanity, and to general moral principles. It cannot be false or capable of misleading the consumer, and cannot be identical or confusingly similar to other registered trademarks.
The effective term of the exclusive right to a trademark is 10 years from the date when the application is filed with Rospatent, but there is the opportunity to make subsequent unlimited renewals for periods of 10 years.
The exclusive right for a generally-recognised trademark has no term.
Trade secret (know-how)
Information of any nature (e.g. of a production, technological, economic, organisational and other nature) may be capable of legal protection. This includes information about the results of intellectual activities in the area of science and technology and also information about methods of carrying out professional activities (e.g. special techniques for processing fabrics, or the approach to the supply chain).
The protection of a trade secret does not require registration and lasts for as long as the right holder continues to treat the information as confidential.
Information can be protected as a trade secret if meets the following conditions:
1. it has a real or potential commercial value because it is not known to third persons;
2. it is not freely accessible to third persons on lawful grounds;
3. it is covered by what Russian law refers to as a ‘commercial secret regime’ introduced by the owner of this information.