EU Copyright and Trade Mark Law: a unifying lens for the protection of Fashion Designs? : Analysis and research into a better understanding of the concepts of originality and distinctiveness

Abstract: As one of the largest and most important sectors, the fashion industry holds a significant position in the global economy. Consequently, ensuring legal protection for fashion designs is of utmost importance to designers and fashion brands alike. As sui generis regime, EU design rights are tailored to the protection of fashion. However, it is equally possible to pursue legal protection in the ”less natural” areas of IP, copyright and trade mark law. Due to the classification of (fashion) designs as “works of applied art” and “less conventional” signs and the correspondingly high(er) requirements imposed in both regimes, this remains, however, challenging. By reviewing and critically analysing current EU legislation and case law, this thesis aims to provide further guidance on how to understand and apply both key requirements in practice. Furthermore, the thesis pursues the idea of creating a unifying lens for the protection of fashion designs by conflating and “cross-fertilising” the key requirements of originality in copyright and distinctiveness in trade mark law.     In relation to copyright, it is concluded that the assessment of originality should be based solely on objective rather than subjective factors and that the sector-specific guidance provided by the CJEU on the application of the originality criterion in relation to photographs could serve as a benchmark. Within the “significant departure” test in trade mark law, the first step should be to define the relevant sector as precisely as possible and not too narrowly, basing its classification on a thorough research. In addition, the “significant departure” test should be considered and applied as a general legal presumption, rather than a blanket one without consideration of the individual case. The assessment should also consider whether the standard of the relevant public’s perception needs to be modified due to the nature of the goods concerned. Finally, it is concluded that there is potential scope of conflation between the key requirements of the two regimes, which may “cross-fertilise” each other in order to gain a better understanding of both. Applying a unifying lens could therefore prove to be a valuable approach and help to provide further guidance on both key requirements and make them more applicable in practice.