Home » Blog » Fast Fashion, Slow Law: A Critical Analysis of UK Design and Copyright Protection for Fashion Designs after Brexit

Fast Fashion, Slow Law: A Critical Analysis of UK Design and Copyright Protection for Fashion Designs after Brexit

By /

Authored By: Zara Pepin

Abstract

This article questions whether the United Kingdom’s design and copyright framework adequately protects fashion designs following the country’s departure from the European Union. It argues that the post-Brexit settlement offers a superficially generous suite of overlapping rights — registered designs, the supplementary unregistered design, the older unregistered design right, and copyright in works of artistic craftsmanship — yet remains fragmented, strategically demanding, territorially awkward, and commercially uneven. Drawing on the Registered Designs Act 1949, the Copyright, Designs and Patents Act 1988, official guidance, and recent case law including Trunki, Karen Millen, Response Clothing and WaterRower, the analysis shows that the framework favours well-resourced brands over independent designers and seasonal creativity. Yet it resists the conclusion that more protection is the answer: over-protection risks chilling the trend diffusion on which fashion depends. It therefore argues for better-calibrated, not merely stronger, reform.

Keywords: fashion law; registered designs; supplementary unregistered design; copyright; artistic craftsmanship; Brexit; intellectual property.

  1. Introduction

Fashion is among the most economically significant and most rapidly imitated of the creative industries, yet it has always sat uneasily within intellectual property law. Garments are simultaneously functional and expressive, mass-produced and aesthetically ambitious, ephemeral and, at the upper end of the market, enduringly valuable. Fashion moves in compressed seasonal cycles, so a design’s commercial value is captured in weeks, long before any contested right could be tested in court; legal timing therefore matters as much as legal substance. The UK’s response has been to layer several distinct rights over the same product, each with its own subsistence criteria, term, and territorial reach. Since the UK left the European Union, that layering has become increasingly complex. The question this raises is one of equity as well as effectiveness: protection that exists only in principle, yet is unusable by those who most need it, is no protection at all.

This article addresses a single research question: does the UK’s post-Brexit design and copyright framework protect fashion designs effectively and equitably, and if not, how should it be recalibrated? Its thesis is that the framework offers multiple routes of protection but remains fragmented, strategically demanding, territorially awkward, and commercially uneven, so that in practice it protects better-resourced brands far more effectively than independent designers and fast-moving seasonal creativity. That contention is not merely doctrinal; it is borne out by empirical research finding that emerging UK designers regard the available rights as effectively irrelevant.[1] Crucially, the article does not argue simply for more protection. Fashion’s creativity is cumulative, and a degree of copying sustains the trend cycles and reinterpretation that drive the industry; over-protection could ossify those processes.[2] The argument is therefore for calibrated reform.

The argument proceeds in five stages. It first sets out the conceptual framework of UK design and copyright protection. It then analyses the principal statutory routes,[3] before examining how the courts have applied them in Trunki, Karen Millen, Response Clothing and WaterRower. A critical evaluation weighing the risks of both under- and over-protection follows, before concrete proposals for reform are advanced ahead of the conclusion.

  1. Background and Conceptual Framework

UK protection for the appearance of products rests on four pillars. The first is the registered design, governed by the Registered Designs Act 1949, which confers a monopoly of up to twenty-five years where a design is new and has individual character.[4] Newness and individual character are assessed by reference to the overall impression produced on the informed user, whilst considering the designer’s degree of freedom.[5] Registration is examined only formally and is the strongest of the rights, but it requires a deliberate, prospective act that much seasonal fashion never undertakes.

The second and third pillars are unregistered. The UK design right under Part III of the Copyright, Designs and Patents Act 1988 protects the shape and configuration of articles for up to fifteen years but excludes surface decoration and two-dimensional pattern — precisely the features that often define a textile.[6] Alongside it, copyright may subsist in design documents, although section 51 prevents copyright in a design document being enforced against three-dimensional copies unless the design is for an artistic work.[7] The fourth pillar is copyright proper, which protects fashion creativity only where a garment or fabric qualifies as a work of artistic craftsmanship under section 4(1)(c).[8] The difficulty is that UK copyright operates a closed list of protected works into which fashion does not fall neatly, so that copyright is rarely available at all.[9]

Brexit reshaped this landscape. The unregistered Community design ceased to extend to the UK and was replaced domestically by the continuing unregistered design for pre-2021 rights and, prospectively, by the new supplementary unregistered design (SUD).[10] The SUD mirrors its EU predecessor but, critically, does not extend protection to the EU.[11] That single territorial fact, examined below, lies at the heart of the framework’s incoherence for an industry whose runway shows and online launches are inherently cross-border.

Critically, four rights do not amount to coherent protection. Each pillar has a different trigger (registration, first disclosure, or authorship), a different object (shape, surface pattern, or the design document), and a different term (twenty-five years, fifteen, three, or the author’s life). Because these axes do not align, no single right protects a garment end-to-end, and the designer must combine rights whose boundaries meet imperfectly. Multiplicity is not completeness: it produces overlap and gaps at once, and it is the gaps, not any shortage of afforded rights, that defeat protection in practice.

  1. Legal Analysis of the Statutory Routes

The statutory architecture is best understood as a series of trade-offs, none of which maps cleanly onto the realities of fashion. Registered design protection is the most robust route, offering a true monopoly that does not require proof of copying. Oddly however, it presumes that a designer will identify, somehow in advance, which of a season’s many designs merit the cost and administrative effort of registration. For a fast-fashion label producing thousands of styles a year, or an independent designer with limited capital, comprehensive registration is neither affordable nor practical; one industry body reported a member being quoted £850,000 to protect a single collection.[12] The right rewards foresight and resources rather than creativity, and it is therefore structurally biased towards larger houses with the legal budgets to register strategically. The point is sharpened by the way scope is fixed at registration: because a registered design is defined by the representations filed, the manner of depiction — line drawings, colour, or tonally contrasted images — silently determines how broadly it can later be enforced. A sophisticated applicant can shape those representations to maximise scope; the independent designer filing without advice may unknowingly narrow the very protection sought, so that the right’s practical breadth tracks access to expertise rather than the merit of the design.

The unregistered routes are designed to fill that gap, but each does so imperfectly. The UK design right’s exclusion of surface decoration is acute in fashion, where the value of a textile frequently lies in its printed or woven pattern rather than its three-dimensional shape. Consider an independent label that builds a capsule collection around a single distinctive jacquard weave or a signature printed motif: that print may be the very core of the design’s commercial value, yet a graphic or floral pattern may fall outside the design right altogether, leaving the designer to rely on copyright or the SUD.[13] The SUD, in turn, is a faithful replica of the unregistered Community design (protecting both two- and three-dimensional appearance for three years) but its protection ceases at the UK border.[14]

This territorial problem is the framework’s most damaging feature, and it flows directly from the first-disclosure rule. A SUD is established only by first disclosure in the United Kingdom; first disclosure in the EU does not create a SUD[15] and, ironically, could destroy the novelty needed for a later UK claim.[16] The mirror-image risk applies to the EU unregistered design, and commentators stress that the position remains legally uncertain: it is doubtful whether simultaneous disclosure in both territories can secure both rights, and the same design may be incapable of enjoying both.[17] A designer who debuts a collection on the London Fashion Week runway, or who reveals it through a simultaneous social-media launch streamed to a global audience, may secure protection in one territory but forfeit it in the other. This is acutely perverse in the digital age, when a single Instagram post or livestreamed show discloses a design everywhere at once: the very channels that make a young designer visible may be the channels that strip the design of cross-border protection, with no obvious way to disclose first in one territory while still reaching a global market. Designers are thus forced into invidious strategic choices about where to launch — a choice that bears no relation to creative merit and everything to do with legal advice they may not be able to afford.[18]

The amendment of the novelty grace and disclosure provisions on 31 December 2020 underscores the point: the geographical reference points within the Registered Designs Act were re-engineered for EU exit, but the underlying logic of territorial disclosure was preserved rather than rethought.[19] Copyright offers a potential escape from these constraints because it arises automatically, lasts far longer, and is not confined by registration or shape. But, as the case law shows, the gateway of artistic craftsmanship is narrow and unpredictable, and section 51 stands ready to defeat many claims in any event.[20] The cumulative effect is a system in which no single right reliably protects a fashion design from conception to market, and in which the designer must assemble protection from fragments, each with a different boundary. The deeper difficulty is that this fragmentation undermines the very feature that makes copyright valuable to the under-resourced: an automatic right is worth little if vindicating it requires litigation to establish which uncertain category, if any, applies. Properly understood, the legal problem is not an absence of rights but a mismatch between the triggers and boundaries of those rights and the commercial lifecycle of fashion, where value is realised in compressed seasonal windows long before any contested classification could be resolved.

A further structural difficulty lies in the relationship between the unregistered routes and copyright once section 51 is brought into account. Where a fashion item is recorded in a design document but does not qualify as an artistic work, section 51 supplies a complete defence to any copyright claim brought against three-dimensional copies, channelling the designer back towards the design-right regime with its shorter term and surface-decoration exclusion.[21] The practical effect is that copyright, the most accessible right because it arises automatically and without cost, is precisely the one most likely to be defeated by a statutory carve-out for the products that matter most to designers, inverting the protection that an automatic right ought to supply.

  1. Case Law: Trunki, Karen Millen, Response Clothing and WaterRower

Four decisions illuminate how the courts apply these rules to design and applied art. In PMS International Group plc v Magmatic Ltd (the Trunki case), the Supreme Court considered infringement of a registered Community design for a ride-on children’s suitcase.[22] The decisive point was the manner of representation: the design was registered through monochrome computer-aided design images showing a particular shape with the visual effect of a horned animal, in tonal contrast and without surface ornamentation.[23] Scope therefore turned on those representations, so that the defendant’s differently decorated product produced a different overall impression.[24] Trunki is a salutary lesson that how a registered design is depicted can radically narrow its scope — a trap the unwary, including many smaller designers, will not avoid.

The reach of the unregistered right was clarified in Karen Millen Fashions Ltd v Dunnes Stores, where Dunnes had copied a Karen Millen striped shirt and black knit top.[25] The Court of Justice held that individual character is assessed against specific, individualised earlier designs rather than a composite assembled from several, and that a right-holder need only identify the features said to give the design that character.[26] Substantively this lowers the evidential threshold facing a designer alleging copying of an unregistered garment — an advantage for the very independent designers the framework otherwise neglects. Constitutionally, it shows how much SUD doctrine derives from EU jurisprudence the UK has retained but no longer shapes, so that, with the SUD subject to UK courts alone, future divergence is inevitable.[27]

The copyright route fared better, fleetingly, in Response Clothing Ltd v The Edinburgh Woollen Mill Ltd, where HHJ Hacon held that a wave-patterned jacquard fabric was a work of artistic craftsmanship, that such a work could be made by machine, and that mass production did not preclude protection.[28] Applying Cofemel, he accepted that a free-standing requirement of aesthetic appeal could not survive complete conformity with EU law, while declining to disapply the domestic test outright.[29] The decision was welcomed as the first English engagement with Cofemel, which had held that copyright subsistence depends only on originality, not aesthetic value.[30]

That optimism was tempered by WaterRower (UK) Ltd v Liking Ltd. The court found the WaterRower rowing machine original on the Cofemel standard, yet held that it did not qualify as a work of artistic craftsmanship under section 4(1)(c), because the designer’s intention had been commercial rather than to produce “something of beauty with an artistic justification for its own existence”[31].[32] The result exposes a glaring inconsistency: a product can be original enough to attract copyright in the EU sense yet fall outside the only UK copyright category that would protect a functional designed object.[33] Commentators read the judgment as a formal acknowledgement that the UK’s closed-list regime is irreconcilable with EU law.[34] Read together, Response Clothing and WaterRower reveal a UK copyright gateway that is doctrinally unstable at exactly the margin where fashion creativity lives.[35]

  1. Critical Analysis and Reform Proposals

Judged against the needs of the industry it serves, the framework falls short in four ways. First, it is fragmented: four overlapping rights pull in different directions on qualifying conditions, duration, and exclusions, leaving no single right able to protect a garment end-to-end. Second, it is strategically demanding: securing reliable protection requires advance registration decisions, careful management of first disclosure, and informed choices about which right to invoke — presupposing legal advice that empirical research finds emerging designers lack.[36]

Third, the framework is territorially awkward: the divergence between the SUD and the EU unregistered design, and the trap of first disclosure, force designers to choose between UK and EU protection at the very moment of creative unveiling.[37] Fourth, it is commercially uneven: independent practitioners report copying but lack the means to register defensively or litigate, while the official review records roughly 70,000 to 80,000 registrations annually since Brexit, warns of abusive registration used to block competitors, and notes that around a quarter of surveyed firms report recent copying.[38] These defects compound one another, producing a regime whose theoretical generosity masks a regressive distribution of benefit: the rights suit larger, established organisations with the resources to employ expert counsel.[39]

Yet the critique must be tempered: it does not follow that the cure is simply stronger protection. Fashion is cumulative and citational — designers borrow silhouettes and reinterpret prints season by season, and a measure of copying accelerates the trend diffusion that creates demand.[40] Over-broad anti-copying rights would risk chilling legitimate inspiration and entrenching incumbents. The problem is not that the framework protects too little, but that it protects the wrong things in the wrong way, rewarding capital rather than creativity. The proper objective is better-calibrated, not maximal, protection.

Proposals for Reform

Four measures follow. First, the territorial trap should be met by a UK–EU reciprocal disclosure arrangement or, failing that, a domestic safe harbour deeming genuinely simultaneous online first disclosure to satisfy the UK requirement.[41] Second, the artistic-craftsmanship gateway should be clarified by statute or guidance, replacing the unstable intention test with a calibrated standard reconciled with Cofemel.[42] Third, the framework should be made accessible to smaller designers through sector-specific IPO guidance, a simplified notification mechanism for seasonal collections, and fuller use of the IPEC small-claims track.[43] Fourth, the review’s concern about abusive online registration should be met with targeted safeguards rather than blanket expansion.[44]

  1. Conclusion

The research question asked whether the UK’s post-Brexit framework protects fashion designs effectively and equitably. The answer is that it does not. The framework is generous on paper and disappointing in practice: its multiplicity of rights creates an illusion of comprehensive protection that dissolves under the pressures of fragmentation, strategic complexity, territorial divergence, and uneven access. The case law confirms the pattern — registered design scope can be quietly narrowed by how a design is depicted, the unregistered right now leans on EU jurisprudence the UK can no longer shape, and the copyright gateway remains unstable at precisely the margin where fashion creativity lives. The cumulative result is a regime that protects well-resourced brands far more effectively than the independent designers and seasonal creativity it should serve. The remedy is not more protection but better-tailored protection, distributed by creativity rather than by capital. Looking ahead, calibrated reform — reciprocal disclosure, a clarified craftsmanship gateway, and genuinely accessible enforcement — would align the law with how fashion is actually created and traded. The task is not to make the law shout louder, but to make it speak coherently.

Bibliography

Table of Cases

  • Cofemel — Sociedade de Vestuário SA v G-Star Raw CV (Case C-683/17) EU:C:2019:721, [2020] ECDR 9
  • George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 (HL)
  • Karen Millen Fashions Ltd v Dunnes Stores (Case C-345/13) EU:C:2014:2013, [2014] Bus LR 756
  • PMS International Group plc v Magmatic Ltd [2016] UKSC 12, [2016] RPC 11
  • Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), [2020] ECDR 16
  • WaterRower (UK) Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC)

Table of Legislation

  • Copyright, Designs and Patents Act 1988
  • Designs and International Trade Marks (Amendment etc) (EU Exit) Regulations 2019, SI 2019/638
  • Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs [1998] OJ L289/28
  • Registered Designs Regulations 2001, SI 2001/3949
  • Registered Designs Act 1949

Bibliography

Official Guidance and Reports

Secondary Sources

[1]Alice Janssens and Mariangela Lavanga, ‘An Expensive, Confusing, and Ineffective Suit of Armor: Investigating Risks of Design Piracy and Perceptions of the Design Rights Available to Emerging Fashion Designers in the Digital Age’ (2020) 24(2) Fashion Theory 229.

[2]On the argument that limited protection can stimulate rather than suppress creativity in fashion through trend diffusion and rapid obsolescence, see Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property in Fashion Design’ (2006) 92 Virginia Law Review 1687.

[3]Registered Designs Act 1949, s 1B(1). The provision was substituted by SI 2001/3949 to implement Directive 98/71/EC on the legal protection of designs https://www.legislation.gov.uk/ukpga/Geo6/12-13-14/88/section/1B accessed 7 June 2026.

[4]Registered Designs Act 1949, s 1B(1) (n 3).

[5]ibid s 1B(2)–(3) (newness and individual character assessed by reference to the overall impression produced on the informed user, taking account of the designer’s degree of freedom).

[6]Copyright, Designs and Patents Act 1988, Part III (ss 213–264) https://www.legislation.gov.uk/ukpga/1988/48/contents accessed 7 June 2026.

[7]Copyright, Designs and Patents Act 1988, s 51 (Judge Pumfrey stated there was no infringement of copyright in a design document or model recording a design for anything other than an artistic work).

[8]ibid s 4(1)(c) (works of artistic craftsmanship). The closed list of protected works is set out in ss 1 and 4.

[9]Alice Wickens, ‘From Calico to Catwalk: Addressing the UK’s Enduring Issue of Fashion Piracy’ (2025) 20(2) Journal of Intellectual Property Law & Practice 71, 74 (UK copyright operates a closed-list system into which fashion does not fall neatly, so that fashion is rarely protected by copyright).

[10]Intellectual Property Office, Changes to Unregistered Designs (GOV.UK guidance, 30 January 2020) https://www.gov.uk/guidance/changes-to-unregistered-designs accessed 7 June 2026.

[11]ibid (the supplementary unregistered design (SUD) mirrors the former unregistered Community design but its protection does not extend to the EU).

[12]Alice Wickens (n 9) 75 (recording that the UK Fashion & Textile Association told the IPO that one member was quoted £850,000 to protect its intellectual property for a single collection).

[13]Copyright, Designs and Patents Act 1988, Part III (n 6).

[14]Intellectual Property Office, Changes to Unregistered Designs (n 10) (SUD protection does not extend to the EU and stops at the UK border).

[15]Intellectual Property Office, Changes to Unregistered Designs (n 10).

[16]ibid.

[17]Stephen Bowman and others, Taylor Wessing, Unregistered EU Designs: Do They Only Arise If the Design Is First Disclosed in the EU? (13 March 2025) https://www.taylorwessing.com/en/insights-and-events/insights/2025/03/bu-unregistered-eu-designs-do-they-only-arise-if-the-design-is-first-disclosed-in-the-eu accessed 7 June 2026 (noting continuing uncertainty over whether a SUD can arise where first disclosure occurs outside the UK, and that simultaneous EU/UK disclosure may not secure both rights).

[18]Intellectual Property Office, Changes to Unregistered Designs (n 10) (advising designers to consider “how, when and where [they first disclose designs] to secure unregistered protection in both the UK and the EU”).

[19]Registered Designs Act 1949, s 1B(6)(a), as amended (with effect from 31 December 2020) by the Designs and International Trade Marks (Amendment etc) (EU Exit) Regulations 2019, SI 2019/638, Sch 8 para 2.

[20]Copyright, Designs and Patents Act 1988, s 51 (n 7); see also Wickens (n 9) 74.

[21]Copyright, Designs and Patents Act 1988, s 51 (n 7).

[22]PMS International Group plc v Magmatic Ltd [2016] UKSC 12, [2016] RPC 11 https://www.supremecourt.uk/cases/uksc-2014-0147.html accessed 7 June 2026.

[23]Trunki (n 22) [30]–[55] (per Lord Neuberger; on its registered representations the design was claimed as a particular shape with the visual effect of a horned animal, in monochrome with tonal contrast, the absence of ornamentation itself a feature affecting the overall impression).

[24]Trunki (n 22) (the differently decorated product produced a different overall impression and did not infringe).

[25]Case C-345/13 Karen Millen Fashions Ltd v Dunnes Stores EU:C:2014:2013, [2014] Bus LR 756.

[26]Karen Millen (n 25) [25]–[35] (individual character of an unregistered design assessed against specific, individualised earlier designs rather than a combination of features drawn from several; no positive obligation on the right-holder to prove individual character).

[27]Spyros Sipetas, ‘The Copyright and Design Protection Interplay Post-Cofemel: Continuity or Recalibration?’ (2025) 20(2) Journal of Intellectual Property Law & Practice 92.

[28]Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), [2020] ECDR 16 https://www.bailii.org/ew/cases/EWHC/IPEC/2020/148.html accessed 7 June 2026.

[29]Response Clothing (n 28) [54]–[67] (HHJ Hacon, applying Case C-683/17 Cofemel EU:C:2019:721, accepting that a free-standing requirement of aesthetic appeal could not survive complete conformity with EU law, while declining to disapply the domestic test).

[30]Case C-683/17 Cofemel — Sociedade de Vestuário SA v G-Star Raw CV EU:C:2019:721, [2020] ECDR 9 (copyright subsistence depends on originality alone, not on aesthetic value).

[31] George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 (HL) 97 (Lord Kilbrandon).

[32]WaterRower (UK) Ltd v Liking Ltd (t/a Topiom) [2024] EWHC 2806 (IPEC) https://caselaw.nationalarchives.gov.uk/ewhc/ipec/2024/2806 accessed 7 June 2026.

[33]WaterRower (n 31) (the rowing machine held original under the EU Cofemel standard but not a work of artistic craftsmanship under s 4(1)(c) CDPA 1988, the designer lacking “the intention to produce something with an artistic justification for its own existence”).

[34]Eleonora Rosati and others, ‘Rowing Nowhere? Long-Awaited IPEC Judgment Confirms UK Law on Works of Artistic Craftsmanship Is Incompatible with EU Law’ (Kluwer Copyright Blog, 10 December 2024) https://legalblogs.wolterskluwer.com/copyright-blog/rowing-nowhere-long-awaited-ipec-judgment-confirms-uk-law-on-works-of-artistic-craftsmanship-is-incompatible-with-eu-law/ accessed 7 June 2026.

[35]Sipetas (n 27).

[36]Janssens and Lavanga (n 1) 230 (concluding that “significant ignorance and low usage levels render the design rights available to UK designers irrelevant”).

[37]Bowman and others (n 17); Intellectual Property Office, Changes to Unregistered Designs (n 10).

[38]Intellectual Property Office, UK Design Protection Review with Policy Considerations (GOV.UK research and analysis, 9 March 2026) https://www.gov.uk/government/publications/uk-design-protection-review-with-policy-considerations accessed 7 June 2026 (reporting roughly 70,000–80,000 design registrations annually since Brexit, concerns over “strategic or abusive registration on online marketplaces used to block competitors”, and around a quarter of surveyed firms reporting recent copying).

[39]Janssens and Lavanga (n 1).

[40]Raustiala and Sprigman (n 2).

[41]Bowman and others (n 17); Intellectual Property Office, Changes to Unregistered Designs (n 10).

[42]Response Clothing (n 28); see also Cofemel (n 30).

[43]On the Intellectual Property Enterprise Court’s small-claims track and costs-capping as a model for accessible enforcement, see Response Clothing (n 28) (a textile copyright claim resolved in the IPEC); and Wickens (n 9) (on the practical inaccessibility of enforcement for smaller designers).

[44]Intellectual Property Office, UK Design Protection Review (n 37).

Related Posts

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top