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The documents below set out the points that need to be covered in any Agency Agreement subject to the law in England and Wales, Scotland and Northern Ireland and which concerns either UK Agents or Agents operating elsewhere in the EU.
The legislation does not apply to Agents operating outside the EU although there is no reason why you should not use the EU legislation as a basis. However, you may find that there is legislation in the country concerned.
It is stressed that this text is not intended to serve as a model contract. It has been drawn up as a result of lengthy consultation and discussion with members of UKFT.
UKFT does not accept any responsibility for the use of this text. Companies are strongly advised to consult their solicitors when drawing up any Agency contract as the terms included in a contract will vary from company to company.
The final wording of an Agency Agreement will also depend on the commercial strength of both parties. Newer companies may find they have to give way to the demands of an experienced Agent. It is vital that members understand the long-term consequences of any Agreement.
If the relationship with an agent works well you will not need to refer to the Agreement but Agents have rights even when they retire so even the best Agent will have a financial claim on a company when he/she gives up work.
The 1986 EC Directive Commercial Agents (86/652/EEC) can be downloaded from the link below;
Whilst there is no guarantee that you will always be paid for the orders you deliver, there is a great deal you can do to make it more likely that you will be paid. Do not leave it to chance.
It is vital that you have your own TERMS & CONDITIONS. A contract between you and the buyer will still exist, whether written or not, and the Sale of Goods Act will still apply (in the UK), but this is heavily weighted in favour of the buyer. Simply agreeing price and delivery date is not sufficient to protect your business.
The following advice is for guidance only, it does not constitute legal advice and is given in good faith. UKFT disclaims any liability resulting from actions taken after reading these notes.
You are strongly advised to consult a suitably qualified lawyer when drawing up your own Terms & Conditions.
These guidelines are largely based on a seminar given by Tim O’Callaghan, Druces LLP, Associate Members of UKFT.
Yes, designers in the UK are better protected now than ever before, by the hard fought-for Copyright and Design Right legislation – The Copyright Designs & Patents Act 1988, The Design Right (proceedings before the Comptroller) Rules 1989 and the 1992 Amendment of these rules.
Legislation has not stopped copying but it does mean that if you understand the protection now available to you, and establish a good reference system for your designs, you have better protection now than in the past. There are systems for registering designs that will offer a greater degree of protection to you, and these are explained here.
What is copyright?
Copyright is an automatic protection which begins the moment that a work is created and “fixed” in a tangible form. So, as soon as you have an idea and start to act on it, the copyright is yours. However, the idea itself is not protected by copyright.
Importantly you must be able to prove that you created that “work” on a particular date. If you have designed something, you have every right to assert your copyright. The first step is to write on everything that you generate:
No, you should back this up by establishing a system for dating, cataloguing and storing your designs. If you worry about theft of your ideas, it’s worth spending some time at the front end of the process to protect them. Depending on what you design, and how prolific you are, the first thing to do is develop a habit of putting your ideas (together with notes on manufacture, special processes to be used, and processes or variations you have devised or developed) together in batches every week/few weeks or every season.
It used to be the case that posting batches of designs to yourself by Registered Post and lodging them in a secure place was sufficient to establish a date on which the designs originated. This can help to establish a time-line and is better than nothing, but the best bet is to register your designs through the UK Intellectual Property Office:
In certain cases batches of designs can be registered together, saving on fees.
What is “Design Right”?
“Design Right” is a newer, British form of protection. It offers a designer “the right to the protection of original, non common-place designs of the shape or configuration of a product” for a specified time. To use this basic protection, which is free, you must have good documentation – the protection offered is explained on the Government Intellectual Property Office website:
To get even better protection for your designs, you can choose to register your designs, giving them protection for up to 25 years (renewable every 5 years). Again, full details are on the www.ipo.gov.ukwebsite.
When should I patent my designs?
You only need to do this when you are originating wholly new product – something unique or original. This is more relevant to textile or product designers but can work with functional developments or ideas in fashion and clothing – for example, a wholly new type of bra. There is a fee and it takes a while but it is worth protecting your original ideas if they are likely to extend beyond a season or two. For a full explanation go to:
The following steps will help you ensure that you assert your copyright and design right whenever necessary. To sell a design or an idea, you are going to have to show it to other people – manufacturers, pattern cutters, buyers – so you should make it clear that you are taking all the necessary steps to protect your ideas.
Be professional in your approach –make an appointment, look professional, arrive in plenty of time and present your designs in a portfolio or case or on a rail.
Be firm but pleasant – if the person you arranged to see is not there make another appointment. Under no circumstances should you leave any design ideas behind for them to “have a look at later” or to “show the boss”. And don’t agree to have them emailed or faxed to another location until you know a lot more about the set-up and are comfortable.
Trust your instincts - ask to have a look at the factory and if you get the feeling that you would not want your valuable design ideas going through there, walk away. Keep searching for a manufacturer until you are satisfied.
Ask whoever you are showing the designs to sign a disclosure or confidentiality agreement. In this you should detail the reference numbers of the work you are showing and ask the person to acknowledge that they have viewed the work at the time of your appointment and that the designs and all rights to reproduce them in whole or part are yours unless agreed otherwise in writing.
If you want to leave things with a manufacturer or buyer, discuss the details, check the prices, check exactly what they are going to do and over what timescale, and confirm everything in writing to them immediately.
If you make a sale, confirm the agreement to place the order in writing, being sure to include details such as retention of title to the goods (which means you still own the design or the goods until paid for in full).
Protecting your company name
When you start out, even if you are convinced there is no other business with the name you are planning to use you should check out:
Even if you are using your own name as a brand name your best protection will be to register it as your trademark.
The information above was supplied by trademark and patent attorneys (and long-standing Associate Members of UKFT), Keltie. For advice on establishing and enforcing intellectual property rights (trademarks, designs, copyrights and patents) in the UK and Worldwide, visit www.keltie.com for information on their services, and full contact details.
Here’s what Keltie say about themselves…
Keltie LLP is a firm of patent and trade mark attorneys based in London but operating globally. Our team has vast experience of patent, trade mark and design matters in the fashion sector.
We represent individuals, SMEs and large corporates who wish to identify, establish and protect their intellectual property rights around the world. Our superb client list includes many household names.
As Associate Members, we have worked with UKFT and its clients for many years. We take pride in giving them down-to-earth commercial advice with an approach that is as passionate and creative as they are.
And what about outside the UK?
Japan, China, the USA and all our other countries to which we export each has their own trademark system. Most of them use what is referred to as “first to file”.
The upshot of this is that anyone in those countries who hears/sees a name they think might be a good one can apply to trademark it, and own the trademark.
You can apply to trademark your brand or your name in overseas countries; it costs money, but it’s an essential part of your business.
Every year, UKFT sees instances of designers and brands (old and new, experienced in export and novices) doing great business in Japan who have neglected to trademark their name there, only to find that an agent or importer got there first. The designer or brand then had to negotiate to buy back the right to use their own name in that market, and that can be very, very expensive.
Help and advice on IP protection is available to members of and UKFT – please contact:email@example.com
On 10th November, the Prime Minister, Business Secretary and other politicians pledged the Government’s support to SMEs to export and access funding. The following contacts were received as a result of the “Exporting for Growth” event organised by UK Trade and Investment and BIS.
Export Credit Guarantee Scheme
ECGD has just rebranded and is now also known as UK Export Finance. Some of the thresholds of export insurance are still high for fashion and textile companies but the organisation has also promised to consider applications for export guarantees on a case by case basis. UK Export Finance has a number of products for the exporter. Some are delivered direct and some are delivered through the highstreet banks.
ICAEW (Institute of Chartered Accountants)
The ICAEW is an official body working with Chartered Accountants. Recognising the difficulty of access to Chartered Accountants for smaller companies, the ICAEW is developing a free mentoring service.
Institute of Credit Management
The ICM is Europe's largest credit management organisation. It too recognises the difficulty of access to credit management services for smaller companies and has pledged to offer a series of free overviews on how to chase debts.
A Peer to Peer Social Lending site. Funding Circle handles requests for funding and investments online and boasts a quick and flexible service. Investors and borrowers spread their risk/exposure and can compare rates very easily.
Business Growth Fund
The BGF is a major new £2.5 billion equity investment fund backed by five of the largest banks in the UK. Its primary target is for companies looking for investment between £2m and £10m. Its main interest is in medium sized companies.
Direct approach to the main banks may also help companies looking for smaller and more flexible levels of investment.
At HSBC, for example, up to two £50,000 Growing Business Grants will go to businesses using innovative ideas to grow within the UK. And up to two more £50,000 Overseas Trade Grants will go to businesses that have the aspiration and motivation to develop new opportunities overseas.
Note: UKFT has no direct contact with any of the companies listed and bears no responsibility for the schemes and actions of any of the companies listed. UKFT is copying this information for the benefit of members and the industry only and companies should investigate thoroughly before entering into any agreements.
Appendix: List of UKFT Members Involved in similar activities:
Accountancy, tax advice and advice on business funding
Contact: Natasha Frangos
Tel: 020 7969 5698
International Trade Partners
Contact: David Allen
Tel: 020 7436 7229
UKFT has devised a standard form that can be used by members when opening new Export Accounts. The forms are in English, French, German, Italian and Spanish and ask for all the information you need when dealing with a new customer: full contact details, banker’s details, VAT number, trade references, delivery address and so on.
The forms should be completed as the order is taken, or a soon afterwards as possible. You can add your logo to it and amend as required. You should include your Terms & Conditions at the same time.