 As a fashion entrepreneur, you must consider a vast range of legal issues when launching your new venture. This article highlights a few legal points that can arise at the initial stages of a new business. It is usually prudent to consult with an attorney on these legal issues, but you can often save time and money by having thought through key points in advance.
Ensure that you actually own the design, idea or product that you wish to commercialize. If you developed or created your design while employed by someone else, that employer may successfully claim ownership rights to the intellectual property. As an example, suppose you are a pants designer for a major retailer. If you develop a new coat design that you want to sell on your own, your employer might claim it owns the coat design and sue you for money or to stop you from launching your own line. Some factors to consider in evaluating such claims are: whether you worked on your idea on your own time or during “work hours,” whether you used any of your employer’s resources (including email, fax machines, computer programs etc.) and whether your idea is related to your employer’s industry. Your position with your employer is also relevant. The higher your position and the more responsibility you have, the greater your duty to your employer.
Once you have determined that you own your idea and are free to move forward, you should consider ways to protect your intellectual property. Unfortunately, popular and talented designers are often “knocked off” and the law is still inadequate to prevent piracy. However, you can take steps to protect yourself.
The brand-name that you create to market your design or product is a valuable asset and is considered a trademark. There are two important considerations to keep in mind when choosing a trademark: first, perform sufficient searches to ensure that you are not infringing on someone else’s trademark rights (thus exposing yourself or your business to a lawsuit) and, second, choose a name that you will be able to prevent others in the same industry from using. The strength of your mark will largely be determined by its uniqueness. Although you will acquire common law trademark rights in your chosen name merely by using it in commerce, you can receive broader protection by registering the mark online with the U.S. Patent and Trademark Office.
Depending on what you have created, also consider copyright protection. Copyright is the exclusive right to copy the work and also provides the owner with the right to exclude others from copying the work. However, copyright does not give the copyright owner the right to prevent others from creating something similar or even identical if they came up with the idea on their own. Types of work that may be entitled to copyright protection include, among others, literary works, musical works, graphics and sculptural works. Although copyright protection does not typically cover fashion.
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