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Pulling the wool over your eyes: Christmas jumpers and the festive IP fiasco

Doing a little homework could keep firms ahead of the game when it comes to seasonal Christmas designs, writes Stuart Whitwell, joint managing director at Intangible Business.

Stuart Whitwell, joint managing director at Intangible Business

Stuart Whitwell, joint managing director at Intangible Business

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It’s all about Christmas jumpers this year, with a nifty marketing campaign from Save The Children propelling these festive knits onto the high-street and into our workplaces. Hailed as this year’s "fashion must-have", the perception is a far cry from Bridget Jones’ disgust over Marc Darcy’s infamous reindeer jumper.

With the quintessential Christmas imagery being limited to a few festive favourites including reindeer, snowmen, snowflakes, and Santa - and the traditional colour-scheme equally limited to reds, golds, greens and whites - has the boom of the Christmas jumper created an intellectual property festive fiasco?

Hailed as this year’s "fashion must-have", the perception is a far cry from Bridget Jones’ disgust over Marc Darcy’s infamous reindeer jumper.

Littlewoods may certainly think so, after Zatori accused the e-tailer of blatantly infringing their 2012 Christmas jumper design, featuring a snowman in the middle of two Christmas trees, surrounded by stars. These (seen here side by side) and are distinctly similar, although the Littlewoods design includes a moon with Santa’s sleigh above the Snowman.

Zatori claims its profits are down 75% as a result of this wilful infringement of its design, which they assert is protected under EU Council Regulation 6/2002 unregistered design rights which protects seasonal designs for three years.  It hopes to gain an emergency injunction against Littlewoods.

An unhappy coincidence?

With a limitation on the number of design options available, it does seem plausible that designing and producing a woolly Christmas knit could unwittingly expose companies to litigation for design infringement.

The child-like depictions of a snowman, Christmas tree and snow on the two jumpers are very typical designs across many products in different applications. Although it is unclear whether the design has been blatantly copied or not in this instance, it is not impossible to believe that this could happen coincidentally. 

This echoes of Cath Kidston’s Christmas predicament last year, after Accolade Wines sued them for trademark infringement of Babycham’s deer Chamois in this Christmas 2012 range due to the presence of a bow on the cartoon baby reindeer.

 A verdict has not yet been reached, but it certainly would seem reasonable that Cath Kidston can dress a reindeer in a bow, and litigation looks a little over-zealous in this instance.

EU Council regulation 6/2002 implementation works very similarly to that of trademark infringement, albeit for a shorter time-frame. Designs can be protected if they are (1) novel and (2) have individual character which the lay public would be able to distinguish from other designs in the public domain.

It is questionable how distinctive the design is in this case, with snowmen, snowflakes and Christmas trees being common on Christmas jumper designs. However, the stark similarity of these two could persuade a jury that Littlewoods copied the design. Littlewoods will have to assure the jury that their creation came from an independent design if they want to continue selling their jumper alongside Zatori’s. 

Trademarking colours

Protection of trademark and designs has been historically difficult in the fashion industry. The Louboutin vs. Yves Saint Laurent case overturned a precedent that a single colour cannot be trademarked.

As Christmas imagery is splashed all over festive marketing campaigns, a legal minefield of ownership opens up. Just take a look at Santa Claus, where no one can agree on the design rights or even origin. Illustrator Thomas Nast supposedly penned the first image of today’s cartoon Claus in Harper’s weekly in 1863, which is now in the public domain along with a later image he drew in 1889.

As Christmas imagery is splashed all over festive marketing campaigns, a legal minefield of ownership opens up.

However, Coca-Cola claims Haddon Sundblom designed Santa for its company in the 1930s, who’s drawings are similar but not identical to Nast’s. More widely, experts argue that Santa Claus has entered the public domain however this contradicts the US Patent and Trademark Office’s decision to add a Santa Claus trademark to a list of holiday-themed trademarks in the US.

As the precedent in the fashion industry seems to largely fall with design’s individuality and the meaningful connections this can build between the consumer and a brand or company, designers should seek to be innovative and novel in their creations.

Particularly when it comes to Christmas jumpers, it might be worth documenting the design process to show the court the development of the design, in the event of litigation. 

Being aware of unregistered and registered design rights and doing a little homework could also keep firms ahead of the game when it comes to seasonal Christmas designs and avoiding an intellectual property festive fiasco.

This article was first published on marketingmagazine.co.uk

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