Brand Protection for Designers

Brand Protection for Designers

Why a Great Brand Is One of Your Most Valuable Fashion Assets

Fashion designers are known for creating beautiful garments, distinctive collections and memorable customer experiences. However, one of the most valuable assets in any fashion business is often something less tangible: the brand itself.

A strong brand can take years to build and only moments to copy. In today’s world of online marketplaces, social media, influencer marketing and artificial intelligence, protecting your brand has become more important than ever.

Many of the branding myths that existed when this article was originally written still persist today. Designers are often surprised to learn that registering a business name, company name or domain name does not give them ownership of that name. Those registrations may be important for administrative or operational reasons, but they do not provide the same protection as a registered trade mark.

For many fashion businesses, trade mark registration remains one of the most effective ways to protect a brand and help prevent competitors from adopting something confusingly similar.

Why Fashion Brands Matter More Than Ever

The fashion industry has changed dramatically over the past decade.

Consumers no longer discover brands solely through shopping centres, magazines or department stores. Today, they discover labels through Instagram, TikTok, Pinterest, influencers, online marketplaces and AI-powered search tools.

A designer’s brand is often the first thing consumers encounter. Before they touch a garment or visit a store, they may already have formed an impression based on a logo, social media feed, packaging style or website aesthetic.

This means that branding is no longer simply a marketing issue. It is increasingly an intellectual property issue.

Do Business Names and Domain Names Protect Your Brand?

One of the most common misconceptions among designers is that registering a business name or securing a domain name automatically gives them ownership rights.

Unfortunately, that is not how the law works.

A business name registration allows a business to trade under a particular name. A company registration creates a corporate entity. A domain name generally provides a licence to use a web address for a period of time.

None of these registrations necessarily prevent someone else from obtaining trade mark rights or claiming prior rights in a similar name.

This is why many businesses discover, often too late, that another party already owns rights to the brand they have spent years building.

What Makes a Strong Trade Mark?

Not all trade marks are created equal.

Generally speaking, the easiest trade marks to protect are those that are distinctive rather than descriptive. Famous fashion brands such as Prada, Mambo and Billabong are good examples because they do not directly describe the clothing being sold.

By contrast, names that describe the products themselves can be much harder to protect. A business may have difficulty obtaining exclusive rights to a name such as “Luxury Dresses”, “Cashmere Clothing” or “Discount Fashion” because competitors may have a legitimate need to use similar wording.

The more unique and distinctive the brand, the stronger the potential protection.

Why Trade Mark Searches Still Matter

In my experience, one of the most expensive mistakes designers make is falling in love with a brand name before checking whether it is available.

A quick Google search is a useful starting point, but it is rarely enough on its own.

A proper trade mark search can identify existing registrations and applications that may create problems down the track. This is particularly important in the fashion industry where similar sounding names, alternative spellings and visually similar branding can easily lead to disputes.

Choosing a name is exciting. Being forced to change it after launching a website, social media campaign and product line is considerably less exciting.

Lessons from Ksubi

One of the best-known Australian fashion branding stories involved the label originally known as Tsubi. Founded on Sydney’s Northern Beaches, the brand quickly developed a cult following and became known for its edgy denim and distinctive marketing campaigns. However, when the business expanded into international markets, it ran into an unexpected obstacle. An American footwear company called Tsubo alleged that the names were too similar and could create confusion amongst consumers. The dispute ultimately resulted in a settlement, with the Australian label agreeing to rebrand internationally as Ksubi, a name it continues to use today.

The rebrand attracted significant media attention at the time because the business had already invested heavily in building recognition around the Tsubi name. Industry commentators noted that while the change involved only a single letter, it still required substantial effort across marketing, branding, packaging, retail stores and international operations.

The story highlights an important lesson for designers and fashion businesses. A brand may be available in Australia but encounter difficulties overseas. In today’s world of online sales, social media, global influencers and international shipping, even a relatively small fashion label can quickly find itself selling into multiple countries. Conducting trade mark searches early—and thinking globally rather than locally—can help avoid expensive surprises later. The Ksubi story remains one of Australia’s best-known examples of why trade mark clearance should be part of every brand launch strategy.

For those interested in reading more, some media coverage of the dispute can be found here:

The lessons from that matter remains relevant today.

Checking availability early can save considerable expense later.

Artificial intelligence is creating exciting opportunities for designers.

And then there is AI which can assist with logo development, marketing campaigns, product naming, packaging concepts and social media content. However, it also creates new risks.

Because AI systems are trained on vast amounts of existing content, businesses can sometimes generate branding that looks surprisingly similar to someone else’s. A logo, package design or marketing concept that appears original may in fact resemble an existing brand.

AI also makes copying easier than ever before. A distinctive visual style, campaign concept or packaging design can potentially be replicated in minutes.

For this reason, protecting valuable brand assets through trade marks and other intellectual property rights has arguably become even more important in the age of AI.

Can Colours, Shapes and Packaging Be Protected?

Many people are surprised to learn that trade marks are not limited to words and logos.

Depending on the circumstances, colours, packaging, shapes, sounds and other distinctive features may also be capable of protection.

One well-known example is the distinctive shape of the Toblerone chocolate bar. Another is the contour shape of the Coca-Cola bottle. Luxury fashion designer Christian Louboutin has spent years seeking protection for his famous red-soled shoes in various countries around the world.

However, obtaining protection for these types of features is often more difficult than registering a traditional brand name. The key question is whether consumers recognise the feature as identifying a particular business.

How Sharon Givoni Consulting Can Assist

At Sharon Givoni Consulting, we advise fashion designers, retailers, online stores and creative businesses on trade marks, branding strategies, copyright, advertising law and intellectual property protection.

We can assist with trade mark searches, applications, portfolio management, brand protection strategies and disputes involving copycat brands. Obtaining advice before launching a brand is often significantly easier and less expensive than trying to resolve a dispute after a competitor has entered the market.

Final Thoughts

Fashion trends may come and go, but a strong brand can endure for decades.

Whether your business sells clothing, accessories, footwear or lifestyle products, your brand is often one of the most valuable assets you own. Protecting it early can help reduce risk, strengthen your market position and make it easier to grow both in Australia and overseas.

After all, designing a great brand is only half the challenge. Protecting it is the other half.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.