Authored By: Amna Osman
Birmingham City University
Abstract
The UK fashion industry is an important part of the UK ‘s economy and citizens expression of creativity and innovation, yet the legal framework for protecting original designs is flawed . Unregistered design rights and copyright law provide limited protection for clothing shapes and surface decoration, it leaves independent designers vulnerable toward big fast-fashion companies. This article examines the potential for changes made by legislatures and citizens to close gaps in UK intellectual property law through declarations of incompatibility, arguing that current protections may conflict with the rights to property and artistic expression under the Human Rights Act. Comparative analysis with French legislation, including the anti- counterfeit 2014, highlights alternative approaches the UK can implement for strengthening Intellectual Property law. The article concludes by proposing changes to UK fashion law that would enhance designer protections. As well as bringing attention to Fashion specialised lawyer as a career route.
Introduction
Fashion law is not a traditional route for solicitors. Furthermore, it can be a specialised sector or different combinations of intellectual property, business law, and commercial/corporate law. Fashion lawyers “dealing with legal issues that impact the fashion industry”.
The UK fashion industry significantly contributes £62 billion to the United Kingdom’s economy[1], making it an important market in the UK. Yet, the legal frameworks for protecting fashion designers are limited. The fashion industry is evolving; therefore, so are the legal complexities, while IP and commercial lawyers can offer general guidance. The understanding of the commercial reality of brands, designers, and retailers can expose brands to effective advice. This is important because without legal clarity, amendments and effective enforcement, designers may not realise the legal complications they may face till it’s too late. For example, revealing a design in the UK will risk losing automatic EU protection, as for an unregistered EU Community design to take place, it must be revealed in the EU.
Fashion law, or legislation for designers in the UK, does not exist in one confined status; it’s a variation of intellectual property, commercial law, employment law and consumer protection developed over time. This article will be targeting intellectual property. The first UK statute to combine patents, designs and trademarks was the Patents, Designs and Trade Marks Act 1883[2], the act requiring registration to enforce limited protection for the creative industries. This was then replaced with the Copyright, Designs and Patents Act 1988[3], introducing protection for unregistered designs as well as copyright protection.
Specialised fashion lawyers will play a critical role in navigating legal complexities tailored to the rapid transformation of the fashion industry, thereby promoting long-term success for brands.
The current legal framework
The fashion intellectual property law in the UK is a combination of statutes and common law principles, including the CDPA 1988 Act[4]. The act was introduced to protect textile prints, sketches, photography, and works of artistic craftsmanship. Many, such as independent designers and individuals that don’t have much knowledge about the law, misinterpret the act to protect clothing designs. In reality it does not, as clothing is merely seen as functional, which is an insult to those who work hard to bring their ideas to life. Not only is it very difficult to gain coverage under this act but also to prove originality.
The Registered Design Act 1949[5] provides protection for the visual appearance of a product. Misinterpreted to protect surface decorations, the act doesn’t explicitly state what is seen as surface decoration, making it more complex for independent designers to distinguish the legal definition without proper legal interpretation.
The Trade Marks Act 1994[6] protects the brand identifier, such as logos, patterns and names. It is used to fight off counterfeit goods. The Trademarks Act is sometimes misinterpreted to protect against lookalikes. Which is only applicable if the detail copied is a brand identifier, distinctive and also very similar. The trademark infringement claim by Athleta against Sports Group Denmark[7] was dismissed; even with the court’s acknowledgement of a high degree of visual similarities, the design lacked distinctiveness. The case shows the scope of the trademark claim; it is useful for other brands or designs to understand how far their trademark would be enforced as well as in assessing the distinctiveness of their own products.
The Patent Act 1977[8] provides protection for technical inventions, which is misinterpreted as protecting multi-way garments. However, this is only applicable if it’s ‘multiway’ in the sense that there are distinctive characteristics, such as zippers or magnetic properties, that make the item of clothing uniquely multiway. The mere functionality of adjusting traps to the consumer’s liking is not applicable. This is a grey area for designers that may have ‘multiway straps’ or wearing methods as a brand identity. Can it be protected? The answer is yes and no. It will be protected under the Trade Marks Act 1994[9], excluding the clothing item itself.
Judicial interpretation
An important case to show the law in practice is Boohoo v independent designer 2025[10]. Where an independent designer, Sonia Edwards, sued Boohoo UK and other brands for infringement of UK unregistered design rights (UKUDR). Which the Intellectual Property and Enterprise Court dismissed due to lack of originality, social media presence and ties between Boohoo products and Edwards’ design.
However, Boohoo is a multi-billionaire fashion company with connections. Locating media presence would be a very difficult investigation. Proving infringement through third parties is very difficult unless providing thorough documentation of the design’s distinctiveness as well as locating third parties.
Sonia Edward’s designs included a ‘multiway’ bikini top. This design would have had more protection under the Registered Design Right Act (1949)[11]. Registration can be an overwhelming barrier legally; there are possibilities of delays. With the change in seasons and fashion trends, by the time the registration is granted, the design may no longer be desirable to the consumers. Registration in the UK cannot be globally enforced; fast fashion companies overseas can copy with no legal repercussions.
The case underlines the challenges independent designers face legally. Having more fashion-specialised lawyers will provide independent designers documentation strategies and evaluation of the effectiveness of registration to avoid such situations.
Legal challenges
Post-Brexit designers got EU unregistered community design rights (UCD); their designs were protected across the EU for 3 years with no fees. However, since the UK left the EU. UK designers only get UK unregistered design rights. In practice this will mainly impact independent designers if they want EU protection. not just legal complexities but also financial. Registration does not require a fee, but travel, accommodation, and sample shipping fees do, e.g.,
Unlike the UK, France has the strongest legal framework for protecting fashion designers. The France Anti-Counterfeiting Law 2014[12] protected surface design, while UK law doesn’t, for example, in the case of Christian Louboutin v Van Haren Schoenen[13]. The court held the red sole is a part of the appearance and identification of Louboutin as well as the decision-maker for consumer purchases. Van was ordered to discontinue the red sole heels. This case is important, as it shows the strong protection France has against lookalike design.
In the UK, a design will not be considered original in the eyes of the law if it is publicised before application registration. An independent designer may not be aware of such consequences without clarification from the law and accessible and effective legal advice.
Development
Recently The Digital Markets, Competition and Consumer Act 2024 (DMCC Act) has granted the Competition and Markets Authority (CMA[14]) enforcement authority for consumer protection. The CMA can investigate and penalise businesses 10% for greenwashing without going through court now. CMA has provided companies with fashion-specific guidance to avoid penalties and legal problems.
After the regulations have dropped, the reactions have been mostly positive from the public. The FashionUnited journal has stated that this is a good opportunity for fashion designers/companies that are genuinely sustainable and eco-friendly to increase their visibility and traffic. This is true, as once consumers are aware of the deception and the new regulations, it’s easier to navigate which brands stand by their proclaimed values. The CMA guidelines have given companies exactly what documentation is needed for protection against false legal claims by the consumer.
The ministers were proposing a change to the copyright law where AI companies use copyrighted work without legal repercussions. This has been heavily criticised by the creative industry, including high-profile artists Paul McCartney and Tom Stoppard[15]. The response was so overwhelmingly negative. With IP law already weakening due to Brexit, the proposal will be setting the creative industry back. This is quite problematic for independent designers or creators, especially if the changes were implemented incorrectly without safeguards put in place. It can be challenged under A1P1 of the Human Rights Act, as limitation of company rights can be seen as interference with the right to peaceful enjoyment of possessions.
Suggestions
A good way forward would be implementing fashion law clinics funded by government creative industry grants that provide services pro bono for aspiring fashion designers. Services would include contract review and ensuring compliance with CMA greenwashing regulations and whether registration would be necessary. E.g.
Fashion brands providing legal internships for aspiring fashion-specialised solicitors and optional fashion law models or courses across different universities in the UK
Current fashion lawyers can request a declaration of incompatibility stating that the UK copyright law and design law do not comply with the Human rights At 1998 under Article 10 (freedom of expression)[16] and Protocol 1 Article 1 (the right to enjoyment of property)[17]. This will push legislatures to review the current legislation and make amendments, such as clarifying what is considered original as well as implementing a ‘similarity test’ to protect designers.
Conclusion
The IP law has grey areas that need to be clarified for the public to ensure designers are aware of how to stay within the bounds of the law and what to expect. Fashion-specialised lawyers that understand fashion timelines, industry-specific clauses and the complex mix of contract, sustainability and intellectual property will secure the fashion industry’s future, especially independent designers. If not, the designer may relocate to a jurisdiction with more favourable legislation with high protection, such as France and Italy. It can also bring negative publicity to UK legislation.
Reference(S):
[1] Lauretta Robenrts, ‘Fashion industry contributes £62bn in GDP new report reveals’ (23 November 2023) < https://www.theindustry.fashion/fashion-industry-contributes-62bn-in-gdp-new-report-reveals/> accessed 13 August 2025
[2] The Patents, Designs and Trade Marks Act 1883
[3] The Copyright, Designs and Patents Act 1988
[4] The Copyright, Designs and Patents Act 1988
[5] The Registered Design Act 1949
[6] The Trade Marks Act 1994
[7] Athleta (ITM) Inc. v Sports Group Denmark A/S and another [2024] EWHC 2449 (Ch)
[8] The Patent Act 1977
[9] Trade Marks Act 1994
[10] Edwards v Boohoo.com UK Ltd and others [2025] EWHC 805 (IPEC)
[11] Registered Designs Act 1949
[12] France: Law No. 2014-315
[13] Christian Louboutin, Christian Louboutin SAS v Van Haren Schoenen BV Case C-163/16
[14] Don-Alvin Adegeest, ‘New UK legislation puts fashions green claims under scrutiny’ FashionUnited (1 April 2025)< https://fashionunited.uk/news/fashion/new-uk-legislation-puts-fashions-green-claims-under-scrutiny/2025040180847> accessed 15 August 2025
[15] Eleni Courea and Dan Milmo, ‘Ministers reconsider changes to UK copyright law ahead of vote’ The Guatdian (4 May 2025) <https://www.theguardian.com/technology/2025/may/04/ministers-uk-copyright-artificial-intelligence-parliament-vote?com> accessed 16 August 2025
[16] Human Rights Act 1998, Article 10
[17] Human Rights Act 1998, Protocol 1, Article 1
