INTRODUCTION

In artistic expression, fashion design emerges as an appealing kind of creativity. Designers produce apparel and accessories using their imaginations as a lens through which they create their creations. Rather than being limited to clothing, fashion has expanded its sphere of influence to include a wide variety of goods and products. Protecting these creations becomes an essential component of maintaining the existence and integrity of the fashion industry in this ever-changing environment, where innovation and style coexist. Taking into account the investments that fashion businesses make in the development of their products further emphasizes the critical requirement for robust protection.

As a result of the fact that fashion design is the result of human intelligence and imagination, it is a subject matter that is protected by laws related to intellectual property.

IPR AND FASHION

The cost of creating fashion designs is high, yet imitating them is quite affordable. It is the copyists who will take advantage of the designers, which will discourage them from producing designs that are unique and inventive in the future. Therefore, copying puts a damper on creative thinking and invention. The protection of intellectual property rights for fashion designs would ensure that the designer or creator of the design receives payment for his or her work, rather than to someone who has just pirated the designer’s creations. This would be good news for aspiring fashion designers. Intellectual property rights (IPR) are essential not only for the fashion industry but also for any other creative industry.

Plagiarism, often known as piracy of products, is the most common type of instance that occurs in the fashion business. Plagiarism refers to the act of making copies of intellectual property without the owner’s permission.

The term “fashion designing piracy” (FDP) can be broadly classified into two categories, which are as follows:

  1. KNOCK-OFF: This is an imitation or copy of anything popular that is not sanctioned and is utilized without a license to sell the original designs at a price that is cheaper than the original. When it comes to the fashion industry, a knockoff is a product that is very similar to the original design in terms of its pattern and other components, but it is sold under the name of a label that is not the same as the label that was used for the original design.
  2. COUNTERFEIT: This refers to an imitation of an original design that has been made without permission and includes the label or logo of the fashion brand in question. The objective of this endeavour is to deceive the purchasers regarding the genuine quality and origin of the clothing. An attempt is being made to mislead the general people.

The administration of IPR in India is a combination of the following acts:

  1. The Trade Marks Act, 1999 (47 of 1999)
  2. The Patents Act, 1970 (39 of 1970)
  3. The Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999)
  4. The Copyright Act, 1957 (14 of 1957)
  5. The Designs Act, 2000 (16 of 2000)

Through IP Laws, works of the fashion industry can be protected in various ways. They are as described below:

  1. THE COPYRIGHTS ACT,1957 (14 of 1957)

It is made clear in section 22 of the act that copyright in India is valid for the duration of the artist’s lifetime as well as for sixty years following the artist’s death.  Even though it does not protect the authors’ ideas or facts, it does protect their product, which was brought about by the idea. Designs of textiles or graphic designs created by designers might be considered to be examples of copyright in the fashion business.  Although it is a very minor issue for everyone, it is against the law to copy the idea of another creator. Someone who violates the owner’s copyrights may be subject to legal action by the owner.

 

  1. THE DESIGNS ACT, 2000 (16 OF 2000)

Within the realm of fashion design in India, the Designs Act, 2000 is the major legal framework that fashion designers utilize to safeguard their designs.  According to Section 2(d) of the Designs Act, 2000, 6 essential features of design include –

  1. Shape
  2. Pattern
  3. Combination
  4. Ornament
  5. Composition of colours
  6. Combination of colours

A design must also adhere to the following criteria to be registered, in addition to the above-mentioned requirements:

  1. It is required to be fresh or brand new.
  2. Before the date on which the registration application was submitted, it must not have been published, revealed, or expected to the public in India or anywhere else, or before the date on which the application was filed.
  3. The design must be recognizable from designs that are previously known or from a combination of designs that are already known.
  4. It is not allowed to include content that is controversial or vulgar.

The Act does not protect the garment as a whole; rather, it only protects the colour, shape, pattern, and other physical characteristics of the garment. It is for this reason that a design needs to be registered. Per the Act, the owner of a registered design is granted copyright under section 2 (c) of the act which means exclusive authority to apply the design to any articles, regardless of the category in which the design is registered.

Only designs that have been registered are protected by the Designs Act. It means that designs that are not registered are not eligible to receive benefits under the Act.

In the case known as “M/S Sabyasachi Couture v. Anil Kumar Batra & Ors[1],” the defendant was the proprietor of a well-known store in South Delhi that went by the name “FRONTIER RAAS.” This store sold reproductions of the items of clothing that were designed by Sabyasachi and also utilized the name Sabyasachi in its couture line of clothing. Because the defendant had used the plaintiff’s design and made improper use of the trademark “Sabyasachi” without first obtaining permission from the designer, this case was intended to be a well-established instance of infringement

  1. THE TRADE MARKS ACT, 1999 (47 of 1999)

Section 2(zb) of the act says that a trademark is a recognizable word, sign, logo, or image that identifies a good or service and officially sets it apart from other goods or services of the same type.  In the fashion world, a trademark is used to make a name stand out when selling and promotional items. It can be put on clothes, like on the collars or buttons.

It can help build a brand, get people to recognize it, and show what the owner stands for. For example, Louis Vuitton has a logo that says “LV,” Gucci has its logo, YSL, and so on. Brands have their names that can’t be copied by any other company.

There are many kinds of trademarks, and businesses often file for names, designs, and slogans.

Nike, for instance, has filed a lot of trademarks, such as for its name, the “Swoosh” logo, and the phrase “Just Do It.”

To protect your business, getting your trademark registered is safe and a good idea. Here are some of the benefits of trademark registration: –

  1. A registered trademark gives the owner of the brand extra benefits, makes it more likely that someone owns the trademark, and lowers the burden of proof. It gives the owner of a brand a legal right and stops copyists from taking their work.
  2. It lets the owner of the brand know that their trademark is unique and doesn’t look like any other authorized trademark. This could protect them from future lawsuits for trademark infringement.
  3. It lets the owner of the brand be the only one who can use, sell, and make things under that name.
  4. It also gives citizens the right to sue anyone who breaks it.
  5. The symbol ‘®’ can be used on the object after the trademark if the trademark is registered.

In the case of Christian Louboutin vs. Mr. Pawan Kumar & Ors[2]., the issue at hand was whether the defendants were engaged in passing off their products as those of the plaintiff. Christian Louboutin SAS, a renowned footwear and accessories brand, had secured a trademark for the distinctive “RED SOLE,” representing a specific shade of red applied to the soles of their ladies’ footwear. The plaintiff alleged trademark infringement, passing off, and sought damages from the defendants, including Abubaker and other shoe outlet owners who utilized a similar red sole color. The court, in its decision, ruled in favor of the plaintiff, acknowledging the unlawful conduct of the defendants. The judge awarded punitive damages to Christian Louboutin SAS for the misrepresentation of their products by the defendants, compensating the plaintiff for the loss of sales, reputation, and goodwill amounting to Rs. 1,000,000.

  1. THE PATENT ACT, 1970 (39 of 1970)

Generally speaking, fashion designers do not seek protection under the Patent Act. However, as a result of the development of technology, designers have begun to implement new technologies in the production of footwear, jewellery, fabrics, and other items. During the Spring Summer 2023 Paris Fashion Week show, a Parisian fashion brand Coperni sprayed liquid fibre on the model, which is an example of how technology and artistic innovation can be used to create something new. After some time, the liquid fibre was transformed into a stunning outfit. To be eligible for registration of the innovation under the patent, the innovation must be of a nature that is both novel and nonobvious. In addition to this, it ought to be an innovative and helpful endeavour.

  1. THE GEOGRAPHICAL INDICATIONS OF GOODS (Registration and Protection) Act, 1999 (48 of 1999)

The concept of “Geographical Indication” (GI) is brought to the forefront as an efficient mechanism that serves the demands of local weavers, artisans, and designers. This mechanism demonstrates a harmonious interaction of indigenous skills, traditional knowledge, and favourable climatic conditions all working together.

GIs provide a distinguishing identity to items that originate from particular geographical regions, establishing a strong connection between the product’s origin and the distinctive characteristics it possesses.

Important examples include the Kutch needlework that is famous in Gujarat, the Sujini embroidery that is exquisite in Bihar, the Kasuti embroidery that is renowned in Karnataka, and the Pashmina that originated in Kashmir.

 CONCLUSION

The concept of intellectual property is omnipresent in the fashion business and extends much beyond the simple act of guaranteeing that a certain monogram is not replicated by another merchant. For various brands, the application of each component of intellectual property protection may be different. For example, a company that manufactures and sells rock climbing gear might seek industrial design protection for its distinctive seaming techniques, trademark protection for its name and logo, copyright protection for its advertisements and graphic appliques on the clothing, patent protection for its distinctive, technical fabrics, and trade secret protection for its methodology of development and production. One of the most important aspects of your business plan is your strategy for intellectual property. Therefore, to prevent the inappropriate use of its concepts and designs, a fashion brand is required to register itself. Even though the process of registering the trademark might be quite pricey and may take a considerable amount of time in the end run, it will be beneficial to the designers in terms of protecting their items.

[1] M/S Sabyasachi Couture v. Anil Kumar Batra & 1988 AIR 1353

[2] 2018 2018 (73) PTC 403 (Del)

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