A freelance designer draws my collection. Who owns the designs?

That depends on what you commission the design for. If you order it to bring it to market as a product, you as the commissioning party are regarded as the designer under Article 3.8(2) of the Benelux Convention on Intellectual Property, unless you agree otherwise. Article 3.29 of that Convention then also gives you the copyright in that design. If the commission falls outside that, the freelancer remains the author: Article 7 of the Dutch Copyright Act only makes an employer the author of what an employee designs. So agree in the commission who gets the rights, and record any assignment of copyright in a deed (Article 2(3) of the Dutch Copyright Act). That way there’s no argument afterwards about whether the conditions of Article 3.8 were met.

My factory abroad is selling my design to others as well. What can I do?

That depends first on your contract with the factory. If it says the factory makes your designs for you alone and returns the patterns at the end, you have a contractual claim. Without that, you need an intellectual property right. A Benelux design only works in Belgium, the Netherlands and Luxembourg. There, under Article 3.16(2) of the Benelux Convention on Intellectual Property, it does cover importing, selling and stocking. You won’t stop the extra production in the country where it’s made, but you can stop the shop or webshop selling it here.

Practice areas

Fashion law

Fashion law (moderecht) is the application of copyright, design law, trade mark law and contract law to clothing, footwear, jewellery and accessories, from the first design to the sale in the shop. A collection goes from sketch to shop in a few months. A copy sometimes faster still. At Liaise we act for fashion brands and designers, from clothing to jewellery. Retailers too. As fashion lawyers we first look at where you have things made and who sells for you. Only then at the legal question.

Is there a copy of your design in a webshop right now, or does a contract need signing next week? Call 020 675 88 21 or get in touch. Response within one working day.

Legal advice for clothing brands, designers and retailers

A design passes through many hands before it hangs in a shop. The designer, a freelance pattern cutter, a factory in Portugal or Turkey, an agent with a showroom in Paris, a distributor in Scandinavia, the retailer. At every handover something can slip away. Rights, for instance. Or the exclusivity you thought you had.

That’s where our work lies. Before a new design goes into production, we check whether it’s clear of other people’s rights. Registering trade marks and designs is part of it, as is drafting and reviewing contracts with manufacturers, agents, distributors, franchisees and shops. If someone copies your collection, we take action. If another brand accuses you of copying, we defend you.

Interim injunction proceedings against a fast-fashion chain can be legally strong and still cost more than the loss you suffer. We tell you that up front. Then we look for a route that does pay off.

Which rights protect a fashion design or collection

Under Dutch fashion law, three rights can apply to a single dress at the same time. Which one you rely on determines how strong your position is.

Copyright arises automatically, without registration. The Dutch Copyright Act expressly names works of applied art and industrial designs and models as protected works (Article 10(1)(11) of the Dutch Copyright Act). The design does have to reflect the designer’s own creative choices. A plain white T-shirt won’t meet that test; a dress with its own cut and print often will. How copyright works more generally is set out on its own page.

Design law protects the appearance of a product. Under Article 3.1 of the Benelux Convention on Intellectual Property (BCIP), that covers the lines, contours, colours, shape, texture, materials and ornamentation. For fashion, that’s a broad list: a print, a fabric structure or the shape of a heel all fall within it. The design must be new and have individual character. You file a Benelux design with the Benelux Office for Intellectual Property (BOIP); registration lasts five years and can be renewed up to 25 years (Article 3.14 BCIP). If you sell in more EU countries, an EU design filed with the European office EUIPO is usually the better fit. How filing works and what it costs is explained under design law.

If a design falls outside both rights, slavish imitation (slaafse nabootsing) remains. That isn’t an intellectual property right of its own but a form of tort (Article 6:162 of the Dutch Civil Code), with stricter requirements.

A fashion trade mark right only arises on registration

A label name you have used for years is not a trade mark for that reason alone. You acquire the exclusive right to a Benelux trade mark by registration (Article 2.2 BCIP). If someone else registers the name first, you are in principle behind. Even if you were there first.

Even a colour or the shape of a product can be a trade mark (Article 2.1 BCIP), as long as it distinguishes your product from those of others. Think of a signature colour on the sole or a recognisable clasp.

For fashion trade marks, much of the work comes after registration. A collaboration with another brand, a capsule collection or a licence for eyewear or fragrance under your name: that’s where you record who may use the trade mark, for which products and for how long. More under trade mark law and the licence agreement.

When someone copies your fashion collection

Dated sketches, emails with your factory, a filing or a first post with a date on it: that’s how you show the design is yours. And since when.

A registered design reaches further than exact copies. Under Article 3.16(1) BCIP you can also act against a product that does not produce a different overall impression on the informed user. A different colour or a different button is then not automatically enough.

It usually starts with a cease-and-desist letter. Interim injunction proceedings follow if the other party doesn’t stop, or if the season can’t wait. If you receive a cease-and-desist letter yourself because your design is said to resemble someone else’s, only respond once you know which right the other party is relying on. Plenty of claims don’t hold up.

Contracts with factories, agents, distributors and shops

A large part of fashion law is simply contract law. Who owns the patterns? That’s often where it already goes wrong. A factory that also makes your design for someone else, or a distributor that stops with a warehouse full of remaining stock, leads to a dispute that a few sentences in a contract would have prevented.

If you sell through an agent or showroom, that relationship falls under the statutory rules for the commercial agency agreement (Article 7:428 et seq. of the Dutch Civil Code), with a notice period and a goodwill indemnity you cannot simply contract out of. A distributor buys in and resells in its own name; what you may agree on territory and prices is set out under the distribution agreement. If you roll out your retail formula through franchisees, the Dutch Franchise Act applies, with a four-week standstill before the franchise agreement is signed.

If you work with freelance designers, photographers or stylists, record who holds the rights in their work. How that works is explained under assigning copyright. All contract types are set out under contract law.

Where image rights and advertising rules affect a clothing campaign

You use campaign images featuring a model within the agreed period and channels. Outside those, you run into image rights. If you work with influencers, the advertising rules also apply to a post in which someone wears your collection; see advertising law and our article on the certification mark in influencer marketing.

If you sell online to consumers, rules apply to your webshop, your terms and conditions and returns. We cover those under e-commerce law.

A fashion lawyer in Amsterdam

Liaise is based on De Lairessestraat in Amsterdam and acts for fashion brands and designers across the Netherlands. Intellectual property and contracts sit under one roof with us. With a new design, we look straight away at the arrangements with your factory. With a copy, also at what your contract with the manufacturer says.

Unsure about a design, a trade mark or a contract? Get in touch or call 020 675 88 21. Response within one working day.

All practice areas

Alexandra Iedema

Lawyer

Alexandra advises and litigates for clients in the cultural, music and creative sectors. She acts, among others, for artists, creative professionals, producers and entrepreneurs within these industries.

Merel Teunissen

Lawyer

Merel advises and litigates in the fields of media law, film law, copyright, privacy law, contract law and intellectual property law. She acts for established and emerging media personalities, producers in film, television and podcasts, victims of unlawful publications and creative entrepreneurs.

Frequently asked questions

That depends on what you commission the design for. If you order it to bring it to market as a product, you as the commissioning party are regarded as the designer under Article 3.8(2) of the Benelux Convention on Intellectual Property, unless you agree otherwise. Article 3.29 of that Convention then also gives you the copyright in that design. If the commission falls outside that, the freelancer remains the author: Article 7 of the Dutch Copyright Act only makes an employer the author of what an employee designs. So agree in the commission who gets the rights, and record any assignment of copyright in a deed (Article 2(3) of the Dutch Copyright Act). That way there’s no argument afterwards about whether the conditions of Article 3.8 were met.
That depends first on your contract with the factory. If it says the factory makes your designs for you alone and returns the patterns at the end, you have a contractual claim. Without that, you need an intellectual property right. A Benelux design only works in Belgium, the Netherlands and Luxembourg. There, under Article 3.16(2) of the Benelux Convention on Intellectual Property, it does cover importing, selling and stocking. You won’t stop the extra production in the country where it’s made, but you can stop the shop or webshop selling it here.