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Fashion Law and IPR: An Analysis

Fashion is a multifaceted concept extending beyond clothing. Coco Chanel's quote emphasizes its connection to ideas and lifestyle. In India, clothing reflects cultural diversity and drives a lucrative industry. The blend of aesthetics and art has transformed clothes into artistic expressions. Artistic innovation distinguishes modern fashion from the past, making Intellectual Property Rights (IPR) crucial for safeguarding creative elements.

The fashion sector thrives on innovation, necessitating strong IP protection for high-end, local, and emerging markets. Despite this, smaller sectors often overlook the need to protect intellectual assets. In today's business landscape, original creative expressions and innovation are vital for competitiveness across industries, including fashion.

The fashion industry's growth is immense and extends beyond attire to luxury items, amplifying the impact of Intellectual Property Rights (IPR). Global fashion places increasing importance on IP rights due to rampant design piracy, undermining growth. To counter plagiarism and support growth, IP rights encompass copyright, trademarks, and patents in fashion and other industries.

Fashion and Intellectual Property

Fashion is an art form that expresses individuality and defines trends, making it a universal industry with widespread participation. This industry's enduring nature stems from its deep connection to personal style and self-expression. Before the mid-19th century, clothing was custom-made and meticulously crafted by artisans. Fashion encompasses aesthetics in clothing, footwear, accessories, makeup, and more, closely tied to specific contexts and seasons.

In the modern age, iconic brands like GUCCI, LOUIS VUITTON, and Prada, along with designers like Sabyasachi Mukherjee and Manish Malhotra, have captured global attention. Intellectual Property (IP) serves as a safeguard for creative concepts, applicable not only in fashion but across industries. IP protects the artistic expression of ideas, encompassing Trademark, Copyright, and Patents. This umbrella of protection extends to a broad range of fashion elements, from clothing and footwear to jewelry and accessories.

The rapid growth of the fashion industry has prompted the need for robust IP rights. Renowned Indian designers like Ritu Kumar, Rahul Bal, and JJ Valya have successfully protected their fashion designs. While ideas themselves aren't protectable, the creative manifestation of ideas is safeguarded by Intellectual Property Law. This legal framework ensures that the dynamism of the fashion industry is balanced with the rights of creators and designers, allowing for continued innovation and unique expressions.

As per study conducted by the associated chambers of commerce and industry India (ASSOCHAM), the domestic designer apparel industry in India by year 2020 will cross over Rs 11,000 crore.[1] Even though contribution of Indian designer worldwide is minimal to 0.32% but by year 2020 it may reach by 1.7%.

Legal Provisions Protecting Fashion Laws

Several laws offer protection in relevant areas of the fashion industry: "Copyright Act of 1957", "Designs Act 2000", "Geographical Indication of Goods Act 1999", and "Trademarks Act 1999". When a design transforms from idea to material form and exhibits originality, it qualifies as artistic work under Copyright Act Section 13 (1957). Section 15 is crucial, addressing copyright in designs registered or registrable under "Designs Act 2000".

It specifies that if a design is registered under Designs Act, it won't gain Copyright Act protection. Additionally, copyright for a design eligible for Designs Act registration but not registered ceases once the design-applied article is industrially reproduced over fifty times by the copyright owner or licensed parties. Consequently, under Copyright Act 1957, design registration and copyright registration cannot coexist for any goods or article.

Section 2(d) of the Design Act6 articulates the concept of "design" within its ambit. In accordance with this provision, a "design" encompasses the distinctive attributes involving the contour, structure, arrangement, embellishment, or arrangement of lines or hues applied onto any object, regardless of whether it is in a two-dimensional or three-dimensional manifestation.

This application is facilitated through various industrial techniques, encompassing manual, mechanical, or chemical methods, whether executed separately or in conjunction. The presence of these attributes, discernible in the final article, is subjected to a scrutiny grounded exclusively in visual appeal and aesthetic assessment, perceived through the discerning eye, with specific exceptions accounted for.

Protection under the Trademark Act, 1999

the Trademark Act 1999[2], incorporates severe penalties for trademark infringers found guilty of illegitimately using trademarks and trading goods to gain profits.

A trademark's relevance to fashion design lies in its visible integration to become an element of the design itself. Fashion designers increasingly embed trademarked logos on garments and accessories, effectively integrating the logo into the design. This incorporation grants substantial protection against design replication. Moreover, brand names also fall under the scope of protection according to the Trade Marks Act of 1999.

Geographical Indications

India's vast diversity finds expression not only in its cultural tapestry but also in its rich repository of traditional knowledge, particularly in the realm of fashion. Precious treasures like the ethereal Pashmina from Kashmir, the resplendent Kanchipuram Silk from Tamil Nadu, the exquisite Muga Silk from Assam, and the intricate Surat Zari from Gujarat encapsulate not only cultural heritage but also wield substantial economic significance. These time-honored fashion assets transcend domestic importance, resonating profoundly within the global market.

The concept of 'Geographical Indication' (GI) comes to the forefront as an effective mechanism that addresses the needs of local weavers, artisans, and designers, showcasing a harmonious interplay of indigenous craftsmanship, traditional knowledge, and favorable climatic conditions. This is illuminated within the Geographical Indication of Goods Act, 1999 (Act 48 of 1999), under section 2(1)(e). These GIs bestow a unique identity upon products that originate from specific geographic regions, forging a powerful link between the product's origin and its distinct attributes.

Noteworthy examples include the bestowal of Geographical Indications to Gujarat's iconic Kutch embroidery, Bihar's intricate Sujini embroidery, and Karnataka's revered Kasuti Embroidery, effectively safeguarding the cultural and economic value encapsulated within these artistic endeavors.

Amid this landscape, the Fashion Foundation of India (FFI) stands as a steadfast advocate for the protection of Intellectual Property (IP) within the realm of fashion. Through its persistent efforts, the FFI contributes to preserving the essence of traditional knowledge while fostering a conducive environment for the sustainable growth of the fashion industry.

Can you Trademark Color?

Christian Louboutin V. Yves Saint Laurent[3]
The Christian Louboutin case involving red soles is a significant landmark in creating awareness about Fashion Law. Christian Louboutin, a renowned French designer, has successfully trademarked his red soles not only in the US but also globally. The iconic red sole serves as an unmistakable identifier for his shoes, exemplifying a strong trademark.

This case is reminiscent of other companies like Ferrari with its distinctive red and Tiffany & Co. with its distinct blue, both having established solid trademark rights associated with specific colors. These instances emphasize the potency of color as a recognizable trademark in various industries, including fashion

Copyright protection

Copyright, at its core, grants the right to replicate, fostering artistic creation. It provides control over one's creative output. The mere act of creating, whether through drawing, sculpting, or composing music, establishes copyright protection. However, Copyright Law doesn't shield the overall cut, shape, or silhouette of a garment, like a standard blazer with arms and buttons. The focus isn't on safeguarding common design elements.

For instance, the Diane Von Furstenberg wrap dress demonstrates this concept. While the dress style itself lacks protection, the unique design it holds is eligible for copyright safeguarding.

Star Athletica V. Varsity Brands[4]

The Athletica case revolved around a fundamental query: whether a sequence of sizes and shapes on clothing could be safeguarded. The case involved an employee who copied designs from their previous employer, a major cheerleader uniform manufacturer, after moving to a new company in a different country. This new company was then accused of copyright infringement. The court scrutinized two distinct aspects of the designs: utilitarian design, which included the uniform's cut, and the images adorning the uniforms.

The court ruled that Copyright Law wouldn't shield the functional cut of the apparel, emphasizing its utilitarian nature. However, it upheld the protection of the decorative designs or images that adorned the uniforms. This distinction highlighted the court's view that while utilitarian aspects may not be eligible for copyright protection, unique and non-utilitarian design elements can indeed be safeguarded.

In the legal matter of Rajesh Masrani v Tahliani Design, the Division Bench of the Delhi High Court was presented with an opportunity to address certain aspects highlighted previously. In this particular case, the Plaintiff argued that the sketches produced during the creation of garments and accessories met the criteria of artistic works as defined by Section 2(i)(c) of the Copyright Act, 1957.

Furthermore, the patterns intricately embroidered and printed onto the fabric, alongside the final designs of the garments, were also contended to fall within the realm of artistic works. The plaintiff accused the defendant of infringing the copyright pertaining to these distinct artistic works, which subsequently led a Single Judge to issue a temporary restraining order in favor of the plaintiff.

  • Piracy: Piracy remains a pervasive concern within the art and design industry, characterized by the unauthorized reproduction of authentic fashion designs. Instances of counterfeit and replicated designs abound. Fashion designers have several avenues at their disposal to shield their creations from such infringements, spanning across various categories of Intellectual Property.
  • Copyright Act: Original fashion sketch designs possess the potential to be registered as artistic works within the framework of the Copyright Act of 1957. Additionally, color combinations can also merit protection under this legislation.
  • Designs Act: The safeguarding of designs finds ample coverage within the Designs Act, particularly within class 02, 03, 05, 10, and 11 of the third schedule of design rules 2000 (The Designs Act, 2000, s.22).
  • Patent Act: Notably, the substances employed in the realm of art or design, encompassing materials like fabric, can be shielded under both the Designs Act of 2000 and the Patents Act of 1970.
  • Trademark Act: Emblematic logo designs are shielded by the ambit of the Trademarks Act of 1999. An illustrative example is the iconic Louis Vuitton brand, with its recurring pattern recognized by the distinctive LV mark, standing as a notable instance of trademark protection.

These available avenues of safeguarding empower designers to effectively shield their distinctive creations against acts of piracy and imitation, thereby assuring that their artistic endeavors receive due recognition and honor.

An intriguing observation
An intriguing observation arises when we delve into the intricacies of the term 'design,' particularly as outlined within the contours of the Designs Act 2000. According to the provision enshrined in the Act: "A design finds its application in relation to an article." This single statement unravels a significant distinction between the concepts of design and article, shedding light on their interplay.

Consider, for instance, the scenario where a dress is adorned with a distinct and original design. In this instance, the dress not only serves its functional purpose as an article of clothing but also embodies a design, thus fulfilling the criteria for both aspects.

However, the nuance deepens when we encounter cases where the creative endeavor is fashioned using more generic or commonly recognized ideas. In such instances, while the resultant dress still qualifies as an article within the purview of the law, it may not inherently meet the criteria to be classified as a design. It's noteworthy that this dress, even though not classified as a design, could potentially acquire the status of an 'original artistic work' under the Copyright Act if it exhibits distinctive creative attributes.

The interpretation of the term 'design' holds a degree of inherent ambiguity, allowing room for diverse understandings. This inherent flexibility has led to a range of perspectives on what qualifies as a design and how the term interfaces with the notion of an article. The nuanced relationship between design, article, and original artistic work demonstrates the complexity within legal definitions and highlights the dynamic nature of intellectual property concepts.

Protection within the fashion industry is selective, posing challenges. Staying updated with trends is vital for survival. Design registration's complexity leads to time-consuming processes. Lack of registration limits creators' product use. Copying designs with fabric alterations masks infringement, complicating piracy remedies under current laws. Rampant knockoffs, unlicensed copies, saturate street markets, hindering legal action against infringers due to practical infeasibility.

Substantial case laws
Microfibers v. Girdhar[5]
The parties involved were upholstery fabric businesses. Girdhar copied Microfiber's artistic work extensively, yet Section 15(2) of the Copyright Act resulted in copyright protection expiring. Microfiber's designs were reproduced over 50 times using an industrial process. Since Microfibers hadn't pursued registration under the Designs Act, the designs remained unprotected by the intellectual property framework, as decided by a single judge bench.

Rajesh Masrani v Tahiliani Design[6]
Here, the plaintiff was granted an interim injunction. The claim was based on the assertion that designs formed during the creation of clothing and accessories, including embroidered or printed embellishments and patterns on fabric, met the criteria of artistic works as per Section 2(i)(c) of the Copyright Act, 1957.

Ritika Private Ltd. v Biba Apparels Private Ltd.
Ritu Kumar, a notable fashion label, expressed worry over design imitation by another company. The Delhi High Court, citing the Microfibers Inc. precedent, concluded that when the plaintiff's copyrighted works were used to craft dresses and the production surpassed 50, copyright ownership was forfeited due to absence of Designs Act registration, inferred from the Copyright Act. Consequently, the plaintiff couldn't seek an injunction against the infringing activity, leading to the dismissal of the case

But in the case of Rajesh Masrani v. Tahiliani Design Pvt. Ltd.[7], Since the copied designs were not replicated over 50 times, the injunction was issued against the infringing copying activity. This enabled the continued protection under the Copyright Act.

General understanding of the interplay of applied laws
In the given scenario, individual 'X' produces an 'original artistic work' labeled 'A,' qualifying as a copyright subject under Section 2(1)(c) as an artistic work. Applying this artwork to apparel yields a new creation 'Y.' However, producing 'Y' more than 50 times leads to the loss of its protection under the Copyright Act. Nonetheless, the protection against infringement remains intact for the 'original artistic work' 'A,' which continues to enjoy copyright safeguards.

Indian markets, famous for affordable rich designs, offer first copies of renowned designs, often celebrity bridal lehengas in Delhi's popular street markets. This provides employment but hinges on design piracy.

Despite efforts to curb imitation, piracy infringes on intellectual property. Many creators overlook checking the legality of their IP, enabling infringers to escape penalties. Fashion law encompasses various legal domains, including intellectual property, and their rightful application is essential. Infringers should face consequences to prioritize designers' rights. This relationship between intellectual property and fashion is well-studied and important to fight counterfeiting.

Understanding the effort behind cheap trendy fashion is crucial. Uncompensated designer work, environmental sustainability, and undervalued labor are sacrificed for a low-priced dress. Addressing this requires stringent IP laws, public education, responsible brand practices in the supply chain, and rewarding designers. Slowing down consumption and valuing ethical, environmental choices is vital.

The fashion world's awareness of intellectual property's significance prompts reconsideration of safeguard options for designs. Designers need to educate themselves about IP rights for effective protection. Recent trends show designers are becoming more vigilant about their IP rights in fashion. Raising awareness about IP rights can lead to a prosperous nation based on intellectual propert

  2. Supra note 2, sec.103, 104.
  4. 137 S. Ct. 1002 (2017)
  5. 128 (2006) DLT 238, 2006 (32) PTC 157 Del
  6. AIR 2009 Del 44
  7. Ibid at 14
Written By:
  1. Kumari Muskan (4th Year Student at Sharda University)
  2. Dishi Mishra (4th Year Student at Lloyd Law College)

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