ROLE OF IPR IN FASHION INDUSTRY

Author: Simran, 4th Year, B.A LL.B, SDM Law College, Mangalore

INTRODUCTION

The French Sociologist Pierre Bourdiew quotes  “ the latest fashion, the latest difference” in his Haute Couture & Haute Culture”(1993) work. The term Fashion is a popular artistic expression at the existing time. Fashion has always been a part of our life. Fashion Industry has been rapidly growing globally. This article discusses the connection of fashion and law, protection of fashion houses and designs under intellectual property rights and other acts, comparison between Indian intellectual property rights acts with other countries, and  how the IPR issues affect the fashion industry. The fashion industry invests a huge sum of money every time to create fresh and original designs. So it’s important to aware people about the fashion market requirements.

FASHION AND LAW

Piracy is one of the common practices in the world of the fashion industry. The term Piracy refers to an unauthorized copying of original work by a fashion designer or imitating the similar design. It is further classified under two heads i.e.[1]

  • Knockoffs – it refers to the close copying or imitation of design where it might not be similar or exactly identical. It is sold under a different label from that of an original designer at a cheaper price than the original design. It’s not illegal work. But if the original designer proves that the imitated work from him or her is similar then action can be brought against it.
  • Counterfeit – it refers to an identical imitation of the same design with an intention to copy and it’s sold at the cheaper cost than the original design. It’s an illegal act where action can be brought against it. co

When such acts take place it becomes important to protect the original designers work. This is where the role of IPR takes place. The Designs Act 2000[2] The Copyright Act[3], The Trademark Act [4], The Patents Act[5]was enforced to protect the rights of individuals against the copying of designs.

TRADEMARK PROTECTION

Section 2 (zb) of the Trademark Act[6] defines Trademark as a mark capable of being represented graphically and distinguishing the goods and services from another and may include the shape of goods, their packaging and combination of colors. Brands are protected through trademark filing and enforcement, if brands are not registered under trademarks act there are chances then customers may find the same styles and quality which damages the bottom line of fashion houses. It’s important for a fashion house to assure protection through trade mark registration. This reduces the risk of stealing from a brand or usage of it for malicious purposes.[7]

COPYRIGHT PROTECTION

Copyright is the branch of IPR that guarantees protection for literary and aesthetic works although it has been published earlier and put to use. It can be sought under the Copyright Act, 1957[8] in India for a lifetime period of the artist and additional 60 years after he passes away. It plays a major role in motivating a creator and thereby ensures that their creation or skills aren’t illegally obtained or used. The Copyright Act and Design Act overlap each other on the issue of design protection. Under sec.15 (1) of Copyright Act, protection to the designs are not given if in case they are registered under design act. Therefore once a registration of clothing design takes place under The Designs Act, The Copyright Act will not apply to it and will enjoy the protection under the Design Act only. If designs aren’t registered in designs act, then it will be protected under sec 15(2) of the Copyright Act. However the point has to be highlighted that the copyright Protection  will expire on those designs, if they have been reproduced on more than 50 articles by any industrial process.[9]

PATENT PROTECTION

New inventions or any innovations in terms of technical aspect, fabric or any material, needs patent Protection. It is true that artistic creations cannot be patented. But these artistic creations involve technical and innovative aspects. Therefore this technology and creation can be patented. There are certain requirements for patent Protection. Firstly the invention has to be novel, secondly it has to be non-obvious, thirdly it must have industrial application. In Patent a design can be protected for a period of 14 years and 20 years for utility of patent from the date of filing. Once the protection ends it eventually falls under public domain and anyone can exploit it without the infringement of patent. Patents are very costly and even time consuming. But it’s a best method to secure an innovation which can be used in the fashion industry for a longer period of time and it will not get outdated if the innovation is novel and the process can be repeated every year in the industry.[10]

TRADE SECRETS PROTECTION AND NEW BUSINESS MODULE

Trade secrets refers to the core concepts by the use of software tools for fashion design, computer-implemented, software based business models and logistics management of the entire chain value. Through the protection of information by IP a business concerns can aim at a well established market position and regulate its market share, profit margins, differentiation, innovation which avoids the risk of IP infringement. IP protection of assets creates an overall image in the eyes of the investors and consumers. Trade secrets are based on stealth and speed, to supply a limited quantity of fashion products.[11]

INDUSTRIAL DESIGN

The term “design” is defined under sec. 2(d) and 4 of the Designs Act, 2000. This act protects only registered design. Unregistered designs cannot claim protection and benefits under this act. The protected designs have to be new and it should be in the form of features of shape configuration, pattern, ornament or composition of lines on colours applied to any article. It might be in the two-dimensional and three-dimensional or even both by any industrial process and it should be a finished article appealing and it is judged solely by the eye. The protected designs have a right to get protection for around 10 years which can be extended subject to certain conditions for 15 years. In case if piracy of a registered design is found then the influenza shall be liable to pay registered appropriated of a design a some not exceeding of rupees 25000 recoverable as a contract debt, and if the proprietor tries to bring a suit for the recovery of damages for any contravention of right or injunction against the reputation of it damages may be awarded and the person may be restrained by injunction. The criteria to register a work under design act 2000 is that it must be new without any prior publication and the novelty of the artist must reflect from design to getting it registered.

COMPARISON ON IPR PROTECTION

China

The principle of indemnity is adopted  openly for the relief of infringement in judicial practices.  The amount of damages obtained by the patent holders in Chinese litigation process is very low. This has led to the profits of infringes being for higher than the amount of compensation and tender which seriously damage the intent of the patent holders further intentional infringement of intellectual property rights and understanding of the effectiveness of the intellectual property in the legal system and stopping it  has become one of the important topics to be concentrated on. According to article 63 of the new Trademark law amended in August 2013 held that the amount of compensation can be determined by the uses of patent holders and the legal process of the inferences and the patent license fee of the trademark. If in case the malicious infringement of trademark rights occurs and the circumstances are serious then the amount of compensation is determined by more than one time and up to three times the amount determined according to the above mentioned method. In 2019 the head of state intellectual property office according to the fourth amendment to the patent law had increased the punishment for the intentional infringement of the patents. it has increased to five times more than the amount obtained by the infringes by doing the malicious act.

Europe

In Europe the intellectual property right can be enforced without registration. The proof of earlier use in the European country markets might be sufficient to enforce the unregistered intellectual property assets. and conditional protection is granted from the date of filing and to the date of enforcement of proceedings of intellectual property rights as soon as application is filed. If an application is rejected then the enforcement efforts are not recognized in European countries. The patent protection does not extend to other countries; it will be within the territory of a filed application. but the patents and trademarks can be extended internationally as the European Union countries are party to the patent cooperation treaty and the Madrid system is administered by WIPO. This eventually simplifies the international extension procedure for the patents and trademarks and the formalities for other members’ jurisdiction can be initiated at the local intellectual property office.

India

In 2018 India has seen several progress in intellectual property rights. The main aim of Indian Patent Act is to create an equal balance between knowledge creation and spreading awareness. In 2018 Indian intellectual property offices started to create an interest for making the use of artificial intelligence, block chain, interest of things, and other advanced technologies. The past act contained the proposal of draft rules. When a patent has been granted and if an infringement is claimed then the current general law will be applicable in Indian caste by the burden of proof is on the party that is claiming the infringement. pic of the monopolistic practices or restrictive practices which enables government to use patents in the public interest here the compulsory licensing is provided for the most of the Intellectual property Rights. Such provisions are set to make situations in which reasonable requirements of the public interest with respect to the patented invention are not satisfied or their pet in product is not available to the public at the reasonable price.

HOW ARE IP ISSUES AFFECTING THE FASHION INDUSTRY

Intellectual property law has played an important role in the proliferation of fashion. intellectual property rights are governing the intangible innovations of the human intellect. It represents an important body of law in fashion business due to their ability to protect the creations of the mind. It is a matter of the fact that intellectual property rights and the fashion industry move hand in hand. A good visual imagination and creativity are the most important aspects of the fashion industry. The plethora of creativity and visual imagination help the brand achieve the recognition in the market. Taking examples of runways with very few designs on display or sold in stores, it’s an opportunity for a designer to display their creative talent and track media attention and build awareness of their designs. Piracy and malicious art done by the people in order to on The prophets affects the original designers contents. Therefore a country must invest in making the Intellectual property Rights stronger in order to protect the minds of creators.

CASE LAWS

  • Louis Vuitton Malletier v. Atul Jaggi[12]

In this case the Delhi High Court restrain the defendants for influencing and passing off their famous trademarks “LOUIS VUITTON” and “LV” by using identical marks and granted damages. Trademark designers can use Trademark law to protect not only logos and brand names but also distinct features of products. For example Burberry holds Trademark rights in both the Trademark Burberry and the Burberry distinctive plaid. The fourth schedule of the geographical indication act provides for classification of the goods protected table under the act. Noting India’s diversity in traditional knowledge and other indigenous art forms the current regime is protected under the geographical indication Act 1999.

  • Micolube India LTD. v. Rakesh Kumar trading as Saurabh Industries & Ors.[13]

The Plaintiff used a registered design as a trademark. The Delhi HC observed that : having regard to the definition of a design under the sec. 2(d) of The Designs Act, it may not be possible to simultaneously register the same matter as a design and a trademark. However, post registration under sec. 11 of The Designs Act, 2000, there can be no limitation on its use as a trademark by the registrants of the design. The reason being: the use of registered design as a Trademark is not provided as a group for it’s cancellation under sec. .19 of the designs act. This judgement has thus extended the scope of trademark protection in India consequently, fashion designs registered under the designs act of only gets protection from the act but also from the trademark act.

  • Ritika Apparels v. BIBA[14]

The case of Ritika Apparels as already discussed has been a unique one. One party copied, rather lifted design from other party’s creation, reproduced and sold in their own name. The party from home the design was lifted and moved to the court alleging copyright infringement. Have a good day defendants who lived in the same design to defense of section 15 (2) of the copyright act 1957 and submitted that the Act does not amount to infringement as the original right owners Ritika apparels has lost the corporate ownership to the production of more than 50 numbers of products by industrial production. Since the same design was not registered under designs act Ritika apparels did not have any means of detecting the said design other than producing products having the same design less than 50 number of times. Thus using the loophole existing in the IPR laws BIBA escapes from any liability. The same case can be said to be the landmark 1 due to the designers lack of knowledge of the IPR laws in India. had the set design be registered under the designs act 2000 the same design would have been protected for a total period of 10 + 5 years. but perhaps the designer wanted to keep a Monopoly on the same design for a longer period of time and has used the copyright notice which letter on turned against her leading to the bi I bi a becoming free of any liability.

  • Christian Louboutin v. Mr. Pawan Kumar & Ors.[15]

This is an important case whereby a big brand famous for it’s highly stylized designer shoes dealt with the selling of counterfeited products at a lesser price causing loss both to the brand name and to the financial offers of the company. Christian Louboutin red sole shoes are quite popular among the celebs and the red colored high heel shoes are quite a rage among the customers who intend to copy their favorite celebs. Fashion sense and style. However as mentioned before too, the original products are quite highly priced, thereby keeping the products out of reach of most of the customers Louboutin brand has established itself as a famous brand is a world leader by means of usage of media and television. Louboutin shoes are known for their distinctive and characteristic red colour soles which are common in all his creations and are marketed through specific channels and stores( Louboutin has 120 such stores across the world and two such stores are there in India, one in Mumbai and other being in Delhi). The Plaintiff, Christian Louboutin moved to the court seeking a permanent injunction and compensation claims from the two stores (Kamal footwear and Adhara steps) selling counterfeit products of red sole shoes. The court in it’s judgements held the defendants label to pay a total sum of rupees 10.7 lakhs, while they were injected permanently from selling the counterfeit again. The judge in it’s judgment declared Christian Louboutin as a well known mark, a much sought after tag from any brand owner. The infringement of Louboutin mark and successful prosecution of the defendants shoes store owners are the best example of how a designer or a brands owner needs to protect his or her Trademark.

CONCLUSION

registration of designs enables inventors of fashion houses to prevent the misuse of the original ideas. Therefore it is important that a fashion house should register itself to prevent the misuse of their designs. Educating themselves is an important factor in order to aware counterfeiters as well as the creators to understand the importance of  originality. Government should focus on the recent trends of counterfeiting and pass laws for the fashion industry to save the earth the intellectual property and enhance the country’s economy.


[1] Rohan Gandhi, Role of Intellectual Property in the Fashion Industry, LEX FORTI (Jul. 05, 2020, 5:00 AM), https://lexforti.com/legal-news/role-of-intellectual-property-in-the-fashion-industry/.

[2] The Designs Act, 2000, No. 16, Acts of Parliament, 2000 (India).

[3] The Copyright (Amendment) Act, 1992, No. 13, Acts of Parliament, 1992 (India).

[4] The Trademarks Act, 1999, No. 47, Acts of Parliament, 1999 (India).

[5] The Patents Act, 1970, No. 39, Acts of Parliament, 1970 (India).

[6] supra note 4.

[7] Intellectual Property in the Fashion Industry, BRANDSTOCK A QUESTAL COMPANY, https://www.brandstock.com/intellectual-property-in-the-fashion-industry.

[8] supra note3.

[9] supra note 1.

[10] Indian Institute of Patent and Trademark (IIPTA), Role of Intellectual property in the fashion industry, https://www.iipta.com/new-trend-season-role-ip-fashion-industry.

[11] Sayali Diwadkar, Role of IPR in the fashion industry, IIPRD, (May 23. 2018, 10:20 AM), https://www.iiprd.com/role-of-ipr-in-the-fashion-industry/?utm_source=Monday&utm_medium=syndication&utm_campaign=LinkedIn_integration.

[12] Louis Vuitton Malletier v. Atul Jaggi,2010, CS (OS) 1419 of 2009, (India).

[13]Micolube India LTD. v. Rakesh Kumar trading as Saurabh Industries & Ors , 2011, CS (OS) No. 1446/ 2011, (India).

[14] Ritika Apparels v. BIBA, 2011, CS (OS) No. 182/ 2011, (India).

[15] Christian Louboutin v. Mr. Pawan Kumar & Ors,(2018) 250 DLT 475, (India).


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