Nurul Hanani A.
Legal Associate

Yesterday, I was scrolling on TikTok (senior lawyers, and my bosses particularly, please don’t judge me) and saw this post by a brand owner claiming that she obtained the copyright over a particular design for hijabs. Apparently, it bears an L-shape design which makes the styling easier.

The gist of the video was her cautioning other hijab sellers out there not to sell a similar design, as she claims, she “owns the copyright” over the design. Following this, there were a few media coverage on the issue. Other sellers were not happy that a basic design, which has been in the market for quite some time, is being “copyrighted” by a new kid on the block. If true, this would prevent other sellers from continuing the sale of hijabs bearing that particular design due to the implications of copyright infringement.

Now, the question is; is a design capable of copyright protection?

Let’s go back to the basics: what works are qualified for copyright protection? Reference to Section 7 of the Copyright Act 1987, there are 6 types of works eligible for copyright:

1. Literary works;
2. Musical works;
3. Artistic works;
4. Films;
5. Sound recordings; and
6. Broadcasts.

Understandably, some might think that designs would be an artistic work. After all, it does require some level of creativity and effort to deliver a design. However, Section 3 of the Act limits artistic works to graphic works, photographs, sculptures, collages, work of architecture for a building or a model for a building, or a work of artistic craftsmanship. None of these include designs in the fashion context.

From the 2 sections above, it would mean that a hijab design is not qualified for copyright protection.

To say that a hijab design is copyrighted would be inaccurate.

So, what is it then?

Under the other intellectual property headings, which heading does it fall under? Trade mark? Industrial design? Patent? Let’s delve into what each represents and what they seek to protect.

Trade mark

Trade mark is simply marks or signs which indicates that it is offered by a particular brand. Some famous trademarks are Nike, Adidas, Coca-Cola.

So, the hijab design does not fall under a trademark.

Industrial design

This applies to features of shape, configuration, pattern or ornament applied to an article through industrial process.

A hijab design could also be a registrable industrial design if it’s new. But since the brand owner alleged her product’s aim was for convenience, the aim of patents covers just that.

Patent

Patent usually applies to inventions, or idea which permits in practice the solution to a specific problem in the field of technology. Simply put; if there is an idea to produce or process something in a new way, or it offers a technical solution to a problem, it can be patented.

What exactly can be patented?

Section 12(1) of the Patents Act 1983 limit it to an “invention”. And, (2); an invention may relate to a product or process.

Does this term extend to hijab designs, then?

Justice Wong Kian Kheong in Mohammad Mubde Absi v Hyat Collections Sdn Bhd & Ors [2020] 10 MLJ 503 addresses this. In this case, it involved the “Bokkita” pinless hijab. It was decided that these hijabs actually offer a solution to an existing problem, i.e.:

1.  the traditional hijab taking a long time to wrap.
2. The amount of fabric used may cause discomfort to some wearers.
3. Difficulty in maintaining the hijab in place with multiple pins.

The court ruled that the Bokkita pinless hijabs are indeed an invention under Section 12(1) of the Act, and is qualified to be patented. Especially so when it does not fall within the ambit of non-patentable inventions under Section 13 of the Act. The defendants in that case failed to invalidate the Bokkita hijabs’ patent.

Thus, it leads to the conclusion that this current case is only eligible to be patented only if it solves a problem. But this is only the first step to the hurdle. This brand-owner still needs to satisfy several other requirements before the design can be patented, such as;

1. Show that the design must be new;
2. It involves an inventive step;
3. It is capable of industrial application; and
4. It must not be precluded from patent as per Section 13.

It is also said that in order to qualify for patent, such a design must not have been disclosed to the public before being patented. Otherwise, this may jeopardize the application. Well, in this situation, the design has been exposed AND people are saying the design has been long in the market! Let’s wait and see if there will be further updates on this brand’s efforts to procure patent or even industrial design. It will be quite an interesting point.