Intellectual Property Rights in Fashion Industry in India

Introduction

The fashion industry is one of India’s most important sectors. Across continents, the Indian fashion market is booming. Designs, creativity, and unique styles are at the forefront of fashion. Whenever anything different emerges, it is usually accompanied by duplicates, necessitating the need for original work protection. As the designs become well-known, the risk of duplication rises, appearing in a significant loss for the markets of the actual and real goods.

It also represents a significant challenge to the economy as a result of the government’s loss of revenue. Fashion is not only limited to garments, but also includes a wide range of luxury items and accessories. Every year, the fashion hub creates a new set of designs that must be protected and governed by a proper legal forum. The manufacturer is assured IPR protection from its use, aesthetic characteristics, and product functionality or a print.

A glamorous industry that relies on superstars and models is only impacted when embezzlement occurs, causing consumer misunderstanding and damages. As a result, brands are very cautious of their credibility, the reality of merchandise with a specific meaning, and the direct impact that their latest creative designs will have on customers and unpredictable sellers who simply go around the bush selling duplicate items.

Leading fashion houses grab the momentum by immediately registering their creations and techniques under copyright and patent law, respectively, and often securing their business by competitive approaches as well. An emphasis should always be placed on marketing, delivery, tracking, managing, using, and encouraging a fashion house’s trademark, which would always help people determine what is original and why they would like to pay more for those original goods only rather than false ones that will reflect their appearance, style, and ideas.

IPR and Fashion Design

Fashion designers must be mindful of the demands of the fashion industry, such as the need to protect their intellectual property. Intellectual property is the outcome of using one’s imagination or intelligence to produce something creative or unique. The fashion industry is an IP intensive industry that is constantly producing and commercializing new innovations and creativity. Fashion designers have a various number of protections under intellectual property law. Some of them will emerge naturally, such as copyright, while others, such as trademarks, will require registration.

The Intellectual Property regime in India is primarily governed by The Trade Marks Act of 1999 , The Copyright Act of 1957 , and The Designs Act of 2000 . Drawings are covered in the scope of “artistic works,” which also contains drawings of fashion clothing. In 2008, when in the well-known case of Rajesh Masrani v. Tahiliani Design Pvt. Ltd, the Court ruled that costumes and accessories, also printed decorations and embroidery on fabric, are “artistic works” covered within the scope of Section 2 (c)(i) of the Indian Copyright Act of 1957, then drawings of fashion clothing were included within the scope of “artistic work” .

A piece of art has intrinsic copyright rights, which ensures that it has copyright protection from the moment it is created. Section 2 (c) (iii) of the Copyright Act is a broad clause that covers “any other work of artistic craftsmanship,” including all accessories and garments . The Designs Act of 2000 covers features of a design which are non-functional such as shape configuration, pattern, structure of lines or color, and ornamentation added to dimensional forms, for the sole intention of providing aesthetic appeal.

Trademark

Section 2(1)(zb) of the Trade Marks Act of 1999 describes a trade mark as “a mark capable of being depicted graphically and competent of determining one person’s products or services from those of another, and may contain structure of goods, wrapping, and color combination.” It is used where a mark is introduced into a fashion design . A trademark is a symbol or logo that allows one good to be distinguished from another. Trademarks are also important in the industry of fashion because they safeguard the name of a brand, photo, style, logos, and characteristic of fashion outfits that are competent of identifying such clothing from others.

Any service or product will have a name and a logo to differentiate it from other related items. When a person thinks of a brand, the design or the pattern, or logo of that brand’s product instantly comes to their mind. Trademarks help fashion houses in establishing a close relationship with its customers. It significantly aids them in protecting their brand equity against infringement. It is not necessary for a trademark to be noticeable on the garment itself. It can also be shown in other ways like on the buttons, the back, or a little “mark” on the inside or back.

Trademark laws has also resulted in the implementation of trade dress, which refers to the overall aspect of the product, such as size, structure, color, texture, graphics, or even specific sales strategies.

Where there is a case of fraudulent application of trademark and sale of products on which a false trademark is attached, Sections 103 and 104 provide for imprisonment for a period of not less than 6 months and may extend up to 3 years, as well as a fine of not less than 50,000 rupees and may extend up to 2 lakh rupees.

And Section 115(4) of the Act discusses police powers for the process of search and seize of any material that calls for action against trademark infringement. Until performing some kind of raid anywhere, the police officer or any other authority must obey certain norms and the Registrar’s opinion.

The most significant influence on fashion is most likely due to trademark law. It is the logo or the brand. It may also be more than a name. Any great brand, such as Calvin Kevin, Dior, Chanel, Gucci, Louis Vuitton, H&M, Tiffany & Co., has a trademark. These are both well-known and trademarked brand. The main goal of trademark law is to prevent consumer misunderstanding in the marketplace. Trademark law not only safeguards a brand’s right to revenue, but it also assists customers in distinguishing between real and counterfeit items.

Patent

A patent is a new development that involves new technologies for manufacturing items such as leather, fabrics, textiles, and so on. In general, patents cover technological innovations that are truly unique, novel in nature, and a non-obvious development. As a result, patents are not the first IP tool that comes to mind when speaking about fashion technologies and the fashion industry. The fashion industry cannot obtain patents on their machinery.

For e.g., inventing a new cloth that does not need ironing and does not crease, etc., will draw a lot of customers and, as a result, a lot more partners and investors. Some of the other problems with patents on fashion inventions is that they are restricted to new designs that must be original and non-obvious, which is difficult to prove. Designs that are being reworked on are not patentable, and functionality can be an issue at times.

The whole process of preparing a patent application takes a long time and is also costly in nature. However, technical advancements provide their machinery with a significant boost in the economic market.

As soon as an artisan wants an absolute right for his work, he must register it under the Design Act, 2000. The innovation must pass three simple examinations in order to apply for a design patent. First, the innovation must be new and not already known. Second, the innovation must be non-obvious, which means it must be a significant advancement over present technology. Simple modifications of previously existing instruments do not constitute patentable invention.

Copyright

The term “copyright” refers to the legal protection of original works. Fashion is a form of art that is used by designers to design clothes, and other type of accessories. Copyright laws safeguard creative designer work, as specified in Section 2(c) of the Copyright Act of 1957. Section 2(c) of the Copyright Act of 1957 describes a work of artistic craftsmanship as a coloring, sculpture, sketch containing a diagram or chart plan, print of a picture, designing work, or different other works of artistic craftsmanship. The designer’s work of designing is protected by copyright.

In contrast to the Copyright Act, where registration is not mandatory for seeking relief from infringement, a design must be registered with the Controller General in order to claim security within the scope of Designs Act, 2000. The Designs Act of 2000 states expressly that a “design,” as specified by the Act, does not contain “any artistic work” as described in clause (c) of Section 2 of the Copyright Act of 1957.

Section 15(1) of the Copyright Act, on the other hand, states that copyright protection shall not exist in any design that is registered under the Designs Act, 2000, and Section 15(2) of the Act states that a design that is suitable of being registered under the Designs Act and is not so registered shall receive copyright protection, but such protection shall cease when the said design has been reproduced more than 50 times.

Neither the Copyright Act nor the Designs Act give absolute protection to fashion industry players. The Copyright Act safeguards the original expression of a “artistic work,” while the Designs Act safeguards the industrial application of a design.

Joint authorship is not permitted under Indian copyright law. The courts addressed the issue of joint authorship in Najma Heptullah v. Orient Longman Ltd., holding that contributions must be indistinguishable and the outcome of close and active intellectual collaboration. Though joint authorship was ventured into, no clear requirements were provided to determine the same. It is also a relatively new area of copyright law.

Conclusion

The point is that copying ideas are not only unethical, but they also cause significant problems for high-end fashion stores. Infringements of intellectual property rights pose a significant danger to the global economy and the global fashion industry, since copying a design has a direct effect on the business of a specific brand. When imitations of premium brands are widely available in market at low prices and in large quantities, these luxury brands lose credibility in developing markets. But apart from the existing legislation, raising knowledge among consumers is extremely vital, as most customers remain unaware that the deliberate or unintentional buying of counterfeit products constitutes a breach of the law.

Even if there are legal safeguards in place, much of the time it is the designers who are to blame. The fashion industry is a constantly rising and changing industry that is unlikely to decline. As a result, stricter laws are necessary to make sure honest play in this sector. The risk of copying and counterfeiting not only results in monetary damages, but it also deters artists from creating something unique and innovative. Creativity is a talent, and it is needed to succeed in the fashion industry. Infringement of intellectual property in the fashion industry not only discourages designers, but it also has an economic effect.

The counterfeit fashion and clothing markets are booming following rather lenient laws and an uninformed consumer base. However, copyright registration acts as a concrete proof of ownership of the piece, among other items. Although applying for copyright registration, trade dress rights, or design registration of garments may make sense on the one hand, it may not always be a simple and economically feasible choice for small agencies and emerging designers. Furthermore, the limited life span of fashion garments or patterns makes it much less financially feasible.

However, it should be noted that ownership of rights has shown a commercial return and is beneficial for convincing investors, venture capitalists, or banks as to the company’s commercial worth.

Even though it is correct that it is very difficult to completely eliminate counterfeiting and prevent others from copying, if the invention is secured appropriately, it decreases the probability of failure by minimizing damages.

As a result, it is essential that IP developers remain vigilant and work hard to obtain adequate protection for their works. In addition, the government must recognize the recent notion of counterfeiting and enact a particular law directly pertinent to the industry of fashion for defending the intellectual property of the county and, ultimately, for enhancing the economy of the county.