Author: Jainam Dedhia
Co-Author: Aarti Laddha
“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street; fashion has to do with ideas, the way we live, what is happening.” – Coco Chanel
The fashion industry is an efflorescing precinct in the world with a projected market capitalization of about 2.25 trillion dollars by 2025.1Intellectual Property laws are significant in every industry because of their capacity to secure inventions, literary, artistic works, designs and symbols. Many established and new players are striving to establish their brand name in the fashion industry.
The creators and the marketers of small or mediocre designers, fashion houses & expensive fashion boutiques often have a casual attitude towards effective checks and balances for their products and articles which eventually leads to infringement or unwanted piracy in the market thereby misleading the customers. Here is a short insight on various types of Intellectual Property, their applicability to the Fashion Industry and how their work can be protected from piracy under IP Laws.
Owing to its flourishing and ever-growing nature, the designs are protected due to knock-off and counterfeit products being sold in the open market adding more to the fashion piracy. Fashion Piracy falls into two categories –
- Knockoffs: It is a process of replication or duplication of any original fashion work/ article/ design being sold at a frugal rate and under a distinct label or a brand name. For example – Footwear being sold as “POMA” instead of the original brand name “PUMA.”
- Counterfeit: It is a process of imitating or reproducing the original product at a frugal rate but with an intention to infringe/ violate the Intellect Property Rights of the owner/ author. Such counterfeit products are found in Bandra’s Linking Road, New Delhi’s Sarojini Nagar etc.
The IPR regime in India protects a fashion design under five legislations which are – The Indian Copyright Act, 1957, The Designs Act, 2000, The Trademarks Act, 1999, Geographical Indication Act, 1999 and The Patent Act, 1972. A garment as a whole is not protected under these acts; rather it protects particular aspects like design, shape, pattern, colour, dimensions etc.
Protection under Copyright:
Copyright in relation to the fashion industry bestows on the designer’s protection in form of creativity & artistic work. The artistic work of Section 2(C) of the Copyright Act that defines artistic work is very broad and it is extended to artistic work without any visual appeal. To seek protection under copyright, registration is optional, not mandatory.3But it shall not subsist when a design is registered under the Design Act.
To qualify for protection under the Copyright Act, your designs should be novel and original. The cut, shape and silhouette of a dress are not protected under this act. Copyright Law protects designs on the surface of clothing, sketches of a design and textile designs. However, if a design has been reproduced or replicated on more than 50 articles/ works, protection under the Copyright Act will cease. This clause hinders the inherent protection given under Copyright Act that a person enjoys merely by creation.
Protection under Design:
Design in relation to the fashion Industry bestows on the designer’s protection for the designs which are new and original. Under the Design Act, the protection is available only to the registered design, be it in the form of features, shapes, colours, pattern, ornaments, composition of lines etc. The registered designs are protected for a period of 10 years and in some cases, it may extend to 15 years. The registration system of Design under the Design Act in India is the fastest among all other registration procedures of Intellectual Property. Once registered, the proprietor enjoys all the rights for the design against Knock off’s and counterfeit. Section 22 of the Design Act states the punishment for piracy of design in the form of damages which may extend upto INR 25000 recoverable as a contract debt.6
Artistic work is not covered under the definition of design. The disparity between artistic work and design can be understood by referring to the Bombay High Court’s decision in Pranda Jewelery v. Aarya 24K this case deals with infringement of copyright within the case of gold sheet articles of deities and non-secular symbols. Here, the court provided the example of copying a painting onto a canvas or paper and explained that when it is copied, the features of shape, configuration is not applied, but the very painting is reproduced. However, when features of shape, configuration are applied to articles like a refrigerator or a mixer, the court opined that the ‘features or patterns though they’re contained in drawings, diagrams or plans and though they’ll have artistic quality, are ‘designs.’
Protection under Geographical Indications (GI):
The fourth Schedule of the GI Act provides a classification of goods protected under this Act. The registration of GI depicts the protection of texture and artistic value which are used to create fashion clothing or accessories. GI used with trademark and copyright can develop and be integrated into a creative economy and will be invaluable to the rural community.
The traditional Indian art forms have a splendid demand in the international market which enables the government to protect & preserve the community from being exploited or falling into the hands of piracy. Till now about 23 GI’s of textiles have been registered in India like Kotpad Handloom Fabric from Orissa, Kancheepuram Silk from Tamil Nadu, the PonchampallyIkat, from Ponchampally near Hyderabad, Kutch Embroidery from Gujrat, Muga Silk from Assam, Kota Doria from Rajasthan etc.
Protection under Trademark:
Trademark as rightly defined under Section 2(zb) of the Act is a mark that is efficient enough to distinguish the work/goods/art of others including packaging, shape etc. A trademark focuses on three things – Interest of a customer, trademark owners and market competitors. In the fashion industry, trademark law comes into play when a mark is incorporated into a fashion design.
They play a pivotal role in this industry for the fashion houses by helping them maintain their goodwill in the market as it protects not only the logos and brand names but also trade dress such as packaging, shape etc. Any registered Design can be protected under the Trademark Law? In this regard, Delhi High court observed in the case of Micolube India Ltd. vs. Rakesh Kumar trading as Saurabh Industries & ors, the Delhi High Court observed that it may not be possible to simultaneously register the similar work/ art as a design and a trademark, having regard to the definition of a design under Section 2(d) of the Designs Act. However post registration under Section 11 of the Designs Act, there can be no limitation on its use as a trademark by the registrant of the design. The reason being: the use of a registered design as a trademark is not provided as a ground for its cancellation under Section 19 of the Designs Act9.This judgment has extended the scope of trademark protection in India, as fashion designers registered under the design act not only get protection from Design Act but also under the Trademark Act.
Protection under Patent Law:
In the present days’ fashion industry, the foremost way for a designer to get an edge over its competitors is to be ingenious, innovative and visionary in its approach. Fashion Patents provide the innovator/ owner with legal right towards their work in the form of a product or process pertaining to the fashion industry. The creator with its strategic planning must choose dual protection to protect its invention under both the design and utility patents. Design Patents are protected for 15 years from the date of issuance whereas Utility Patents are protected for 20 years from the date of filing.
Example: In 2017, the e-commerce giant Amazon to enable on-demand apparel-making patented a manufacturing system for its clothing/ fashion business. This newly adopted patent aids Amazon in manufacturing customized clothing on demand and also protects its own private-label brands. Adding devices to clothing is becoming a trend in this age of technology. Designer Lauren Scott is adding radio frequency tags to her children’s clothes so that parents can track their children and tags will carry information of medical in case of emergency.
Fashion Industry invests a huge sum of money every year to create new & original designs and with the growing awareness & importance of IP in the fashion world, there is a need to evaluate the protection granted to fashion designs. The first step to keep a fashion brand out of counterfeit and knock off is to make sure all legal aspects are covered. A designer can use a trademark, copyright, patent, design law to obtain protection in different aspects of their designs Protecting Intellectual Capital in the form of IP assets will boost the income of IP owners via sale, licensing and commercialization for differentiated new products.
In the coming years, we will see a significant spark and streamlined process in the IP Law since it is attracting millions of youth into creativity, innovation especially the fashion designing courses which eventually will provide impetus to India’s economy/ growth being the hub of textile sector and promoting export on a large scale.