The fashion, design and lifestyle industries create a variety of new and original designs every season.
According to the BMCC, however, the national and regional laws for the registration and protection of these designs are rarely used.
The website concludes that this is mainly due to the impression that the short life cycle of such products may not justify the financial costs associated with legal registration.
Recently, duck Scarves accused Vivy Yusof of plagiarizing another hijab label, Bokitta.
This piqued our curiosity as to where the line between inspiration and plagiarism was drawn and what laws we have in Malaysia to protect designers from the latter.
Plagiarism or inspiration?
A dispute broke out between fans of the two brands after duck uploaded its Magnetic Pins with Chains, their latest product, to its official Instagram page.
Bokitta fans were quick to accuse that the hijab accessories have been around since last year, while the product from dUCk only hit the market a few days ago on October 20th.
This is not the first time that you have been accused of allegedly copying another designer's artwork.
In April 2019, Malaysian brand Ilham Echenta accused the company of allegedly copying its range of instant turban designs.
The turban design by Ilham Enchenta (left) and the turban design by dUCk (right) / Photo credits: Ilham Enchenta / dUCk
While they share many similarities, it is difficult to justify and prove whether duck Ilham plagiarized Echenta's design as an accused.
Christy Ng also faced similar allegations after releasing the design of her bag, which looked quite similar to Bottega Vaneta's "The Pouch".
Christy Ngs pocket on the left; Bottega Vaneta's variation on the right / Photo credit: @chizubunny on Twitter
Here is the problem.
Both of the above designers are using these "copied designs" for commercial purposes by selling them and supposedly passing them on as their own.
According to Steven Bradley of Vanseo Design, who was concerned, "While it is okay to copy in order to learn, it is not acceptable to copy someone's work and pass it on as your own for commercial purposes."
He went on to explain that we can all agree that this is wrong and that is why intellectual property rights (IP) exist primarily.
Do fashion designs have IP protection?
The protection of intellectual property in Malaysia includes patents, trademarks, industrial designs, copyrights, geographical indications, and layout designs for integrated circuits.
In Malaysia, the intellectual property rights protecting fashion designs fall under industrial design.
An industrial design refers to the features of shape, configuration, pattern, or ornament that are applied to an article by an industrial process which, in the finished article, is eye-pleasing and judged by the eyes.
Simply put, it refers to the characteristics of a finished design piece that can be seen and assessed by a person.
The Industrial Designs Act is governed by the Industrial Designs Act 1996 and the Industrial Designs Regulations 1999 in Malaysia.
Legal enforcement occurs when you have not received permission from the owner of a registered design and still use or apply those imitations in an obvious or fraudulent manner for commercial use.
A violation occurs when a person accused of using the same design without a license or consent from the owner of a registered design applies the design or an apparent or fraudulent imitation thereof to an item for which the design is registered. or import, sell, rent or offer or offer for sale or rent such items.
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"Obviously" means that it is immediately apparent to the eye that the offensive design is an imitation.
While "fraudulent imitation" means that the offensive design is not necessarily an obvious copy of the registered design, but has some differences to disguise the copying.
DUCk's magnetic hijab pins would supposedly fall under "obvious" because of their similarity to Bokitta's.
In Christy's case, she would most likely be accused of "fraudulent imitation" as her version of the bag attaches a strap that the other lacks.
Vivy's instant turban case could also be included, as there are some significant differences.
The alleged "original designer" (owner) can sue the accused with these claims only if – and only then – the owners have registered commercial design rights for their products.
This is because Malaysian law does not provide protection for an unregistered design.
Therefore, it is especially important to register designs in Malaysia wherever possible.
The new protection period of 25 years should make the registration of designs more attractive.
How do you apply for protection?
An application for registration includes:
- The completed application form;
- A legal representative;
- A statement briefly explaining the applicant's title source by the author;
- A series of representations of the design; and
- Payment of official fees.
The representations consist of drawings or photographs showing different angles of the design applied to the piece.
There is no mandatory minimum number of angles, but it should be enough to show off the overall design, especially its novel features.
A designer should budget around RM1,000 for submitting an application for a single design. This fee is based on the assumption that no objection will be raised to law enforcement.
For multiple applications, each additional design after the first can add an additional RM500 to RM600 to the total cost.
No further official fees are required when registering until the first renewal, which is due 5 years later.
This registration can be renewed up to four times, the maximum duration of protection being 25 years.
Finding a fashion lawyer is a good idea
Art is subjective, and in the fashion world lawyers should be well versed in order to defend their clients.
Affendy Ali, a Malaysian lawyer specializing in fashion law, said in an interview with The Star:
“Ideally, every designer should have a legal entity to look after them. The signed third party relationship contracts should effectively help protect the designer's rights. "
He goes on to explain that consulting a lawyer would also be helpful when applying for funding.
“An investment agreement is not a simple bilateral agreement. However, when it comes to intellectual property rights, the law can help protect a brand's trademark, ”he said.
Malaysian fashion designer Fairuz Ramdan said in the same article from The Star that hiring a lawyer with experience in the fashion industry is always a good idea.
“If not, try to find one with a business background. Most importantly, the person can get things done, ”he shared.
“After all, friends can become enemies. In business, even when it comes to fashion, money matters. "
What designers in Malaysia should know is that the fashion business is not just about creating a fashion label and creating designs. It's an end of the day business where the fashion label has to make informed business decisions. This is where the legal aspects come into play.
Affendy Ali, Malaysian fashion lawyer
- For more information on other fashion-related items, see here.
Selected image source: Bokitta / dUCk