“Fashion does not exist just in clothes. Fashion is in the sky and on the street; it’s everything to do with ideas, how we live, and what is going on.”

ABSTRACT

Indeed, imagining a social existence without apparel, shoes, and accessories, or without the businesses that provide these items, is an intriguing idea. In such a scenario, where these elements are absent, it would undoubtedly have a significant impact on our social interactions and the way we perceive status symbols. The fashion industries in India is one of the most significant sectors. The Indian fashion market is expanding across continents. Designs, originality, and distinct styles are at the forefront of fashion. The risk of duplication grows as the designs become more well-known, resulting in a significant loss for the marketplaces of real and authentic things. Here the role of intellectual property rights into the fashion world comes into picture. Intellectual property rights are a collection of legal rights granted to an individual or inventor who has invented a design. The nature of intellectual property rights is expressive and creative. They encompass a wide spectrum of fashion expressions. Using these proprietary rights, one can restrict competitors from imitating or reproducing their work for a certain length of time. In this research paper we will do analytical research firstly about the types of IPR in fashion industry in India, then we will do comprehensive research on the role of IPR in fashion industry and lastly will discuss the recent cases.

KEY WORDS: Fashion industry, India, intellectual property rights, patent, copyright, trademark\

INTRODUCTION

India’s fashion business has a long history spanning back thousands of years, with embroidered garments being popular since antiquity.

With worldwide advances, India’s clothes and accessories market is fast expanding in the contemporary period. Domestic designers, a few of them have recently received worldwide acclaim, have played a vital part in India’s fast ascent in the fashion market over the previous ten years. The textile industry is the most important in this regard, with India being the world’s second-largest exporter of textiles. The increase in the number of events from 2004 to 2013

indicates the growth of India’s fashion industry. In accordance with a survey conducted by the Associated Chamber of Commerce and Industry of India, the domestic designer clothing industry in India was worth 720 crores in 2012, with an annual compounding rate of roughly 40%, and was predicted to reach 11000 crores by 2020.

The fashion industry people have been whining about how their innovations are being mimicked and replicated. As we know copying has become very easy due to all sophisticated software technology. With the advent of technology in the twenty-first century, intellectual property rights are continually developing. They are not limited to a particular realm, but are continually broadening their scope. Nowadays, intellectual property rights are changing and functioning in tandem with the fashion business. With a global market capitalization of $500 billion dollars, the fashion business is continually creating and generating new trends. As a result, it is critical to safeguard the intellectual property rights linked with the fashion sector.

It also poses a big economic problem due to the government’s income loss. Fashion is more than just clothes; it also covers a wide variety of luxury products and accessories. Every year, the fashion centre produces a new collection of designs that must be safeguarded and controlled by a suitable legal forum. The maker is guaranteed IPR protection based on its usage, aesthetic qualities, product functioning, or a print.

A fashionable sector that relies on celebrities and models is only harmed when embezzlement happens, generating customer confusion and damage. As a result, businesses are wary of their trustworthiness, the reality of products with a specific meaning, and the direct influence that their most innovative ideas will have on buyers and unexpected sellers who merely walk around the bush selling duplicate items.

These clothes and accessories call for creative thinking and a keen eye. Examples of applied intellectual innovation and creativity in the fashion industry include the Patek Philippe Nautilus, the Hermès Kelly Bag, Manish Malhotra’s bridal gown line, the Chanel No 5 perfume, and the Hermès Kelly Bag. Intellectual property isn’t very important in a business that makes billions of

dollars a year and is known for being innovative and passionate. As the act of “Fake” or “Imitation” has taken front stage, it is a normally misjudged collection of guidelines.¹

RESEARCH METHEDOLOGY

This research paper is illustrative and it is based upon secondary information to analyze thoroughly the role of IPR in fashion industry in India.

Secondary data like journals, news articles and other similar articles.

IPR IN FASHION INDUSTRY OF INDIA

Intellectual property rights are the rights that are utilized to safeguard one’s intellectual production from others who would steal it or unjustly gain themselves from it. Branding and reputation are the backbone of the fashion business, with brands like Raymond, fab India, and others having a sense of seriousness and reverence that few other sectors can equal. Aside from trademarks/branding, designs/industrial designs, and copyright are all part of fashion industry members’ IP portfolios.

The diversification of Fashion Industry in India is as follows:

• Premier fashion houses such as Louis Vuitton, Rolex, and others.

¹https://www.researchgate.net/publication/269106421_Intellectual_Property_Rights_Protection_of_Fashi

on_Design_in_India

• Luxury fashion businesses such as Gucci, Burberry, Dolce & Gabbana, and others.
• Michael Kors, Steve Madden, Armani Exchange, and other low-cost luxury brands are available.
• Mainstream labels such as H&M, Mango, Levi’s, FCUK, Etc.
• Sabyasachi Mukherjee, Manish Malhotra, Tarun Tahiliani & Ritu Kumar are examples of Indian designers with international renown. Rohit Bal, Abu Jani and Sandeep Khosla, Wendell Rodricks, Kanika Goyal & others.
• Local designers and small businesses such as Khadi naturals, fabindia, titan, & others.
• Homegrown brands from heritage cities that showcase their culture, such as Kashmiri shawls, Banarassi saree, etc.²

The Intellectual Property system in India is principally controlled by the Trade Marks Act of 1999³, the Copyright Act of 1957,⁴ and the Designs Act of 2000⁵. Drawings are included in the purview of “artistic works,” which also includes drawings of fashion clothes. When the Court ruled in the well-known case of Rajesh Masrani v. Tahiliani Design Pvt. Ltd⁶ in 2008 that costumes and accessories, as well as printed decorations and embroidery on fabric, are “artistic works” covered by Section 2 (c)(i) of the Indian Copyright Act of 1957⁷, then drawings of fashion clothing were included within the scope of “artistic work.”⁸

IP plays an important role in protecting fashion designers and artists from the horrors of counterfeiting and mimicking.

Fashion Design Piracy in the context of fashion industry includes1) looting of logos/brands labels & 2) looting of fashion design of the company. Piracy may be divided into two categories:

² https://ssrana.in/articles/counterfeiting-in-fashion-industry-india/

³ TRADE MARKS ACT, 1999 [Act No. 47 of Year 1999 dated 30th. December, 1999]

⁴ THE COPYRIGHT ACT, 1957 ACT NO. 14 OF 1957

⁵ THE DESIGNS ACT,2000

⁶ Rajesh Masrani vs Tahiliani Design Pvt. Ltd. on 28 November, 2008

⁷ THE COPYRIGHT ACT, 1957 ACT NO. 14 OF 1957

⁸ https://lawbhoomi.com/intellectual-property-rights-in-fashion-industry-in-india/

1. COUNTERFRITING: Counterfeiting is defined as the intentional imitation of something else. People sell replica items of well-known companies in local marketplaces with minor modifications, but they’re quite close to the original in pattern, style, and colour schemes. Furthermore, as stated at the outset of this essay, imitations can be of fairly good quality, exacerbating the industry’s counterfeiting problem.

In a recent case of Guccio Gucci v Inteyaz Sheikh⁹ When premium fashion company GUCCI filed a petition for infringement and passing off against Shipra Overseas, owned by one Intiyaz Sheikh, problems of trademark infringement and passing off were recently raised in the Delhi District Court in Tis Hazari. The fashion label alleged that the defendant was involved in the creation and selling of low-quality counterfeit items carrying the “GUCCI” trademark and the brand’s distinguishing green and red stripes.

The plaintiff sought a permanent injunction against the defendant to prevent them from infringing on their trademarks, copyright, or passing off their trademarks.

Also linking road in Mumbai is another example of major hub of counterfeit products of luxury brands like Louis Vuitton, Armani exchange ETC.

• KNOCK OF: A knockoff is a replica or imitation of something or someone prominent that is made without a license and produced illegally. A knockoff is a garment that is nearly identical to the original fashion design in terms of its features and is sold under a different label than the original design. Consequently, it is not promoted in an effort to be sold as genuine. The purpose of knockoffs is to replicate the original design almost exactly line by line, but with the name of a different designer attached. An almost exact copy of the original design is referred to as a line-for-line duplicate.

PROTECTION GIVEN TO FASHION INDUSTRY UNDER DESIGNS ACT OF 2000

The registered design is the sole thing protected by the Design Act. As a result, unregistered designs cannot benefit from this act’s protection and advantages. The Design Act of 2000 protects new designs in the form of features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article, whether in two dimensions, three

⁹ Cs (Comm) No. 2090/2019 Guccio Gucci vs Intiyaz Sheikh on 27 August, 2021

dimensions, or both, by any industrial process, and it must be a finished article that appeals to and is judged solely by the eye.

The Controller-General of Design, patent and Trade Marks requires an industrial design registration application. A design, on the other hand, can only be registered if: i) It is novel and a first, meaning that no one else has produced or reproduced it before; ii) it has not been made public anywhere in India or outside of the country’s jurisdiction; iii) It is simple to distinguish from other well-known designs.

In addition, once a design is registered, the registered owner receives protection for ten (10) years, which can be extended for an additional five (five) years by applying for an extension.

PROTECTION GIVEN TO FASHION INDUSTRY UNDER COPYRIGHT ACT OF 1957

Copyright alludes to the lawful right to hold protected innovation. To put it another way, the legal right to reproduce anything is known as copyright. This assists with guaranteeing that main the veritable makers of products and those to whom they give approval have the main right to reproduce the work. All creative, pattern, musical, and literary works are protected by copyright. The artistic design work is covered by the Copyright Act of 1957, Section 2(c). It could be a sculpture, a painting, a drawing, or any other artistic creation. Unique works are safeguarded by this policy.

In the notable instance of Rajesh Masrani v. Tahiliani Plan Pvt. Since the Court ruled that costumes and accessories, as well as printed decorations and embroidery on fabric, fall under the definition of “artistic works” in Section 2 (c)(i) of the Indian Copyright Act of 1957, fashion clothing drawings were also included in this definition.

Art is protected by copyright from the moment it is created because it possesses intrinsic copyright rights. Segment 2 (c) (iii) of the Copyright Act is a wide statement that covers “some other work of imaginative craftsmanship,” including all embellishments and articles of clothing. The Plans Demonstration of 2000 covers elements of a plan which are non-useful like shape setup, design, construction of lines or variety, and ornamentation added to layered structures, for the sole expectation of giving stylish allure.

PROTECTION GIVEN TO FASHION INDUSTRY UNDER PATENTS ACT

Novel innovations that benefit the general public are granted patents. It’s an invention that uses cutting-edge technology to make things like shoes and fabrics. The production of durable textiles may be demonstrated through a patent portfolio. Investors and partners in business will be drawn in by this. A patent is a property right granted by the government that grants the holder perpetual ownership of an invention. Utility patents, plant patents, and design patents are the three categories of patents.¹⁰

When you think of the fashion industry, you might not immediately think of a patent because artistic creations cannot be patented because they are more technical and innovative. However, the technology that is used to create these designs or artistic works can be patented. Patent assurance has been conceded to the innovation used to produce CROCS shoes, sans wrinkle textures, UV separating materials that are impervious to fire and water-repulsing materials.

Design patents are protected for 14 years and utility patents for 20 years from the filing date. From that point onward, it becomes public space and can be financially taken advantage of by anybody without disregarding the patent. Even though it can be very expensive and time- consuming to patent an invention, it can be used to protect a fashion industry technique that will not become obsolete if it is original and can be replicated annually.¹¹

PROTECTION GIVEN TO FASHION INDUSTRY OF INDIA UNDER TRADEMARK ACT OF 1999

Trademarks are a type of intellectual property rights protection that comes into play when a product takes on a secondary significance. It is a feature of a product’s visual appearance or packaging that indicates the product’s origin to customers. Traditionally, trademarks were required to be graphically represented, but the definition and requirements have evolved over time to accommodate various types of non-traditional marks. For instance, in addition to word and logo marks, trademarks can now include non-traditional elements such as sounds, smells, holograms, motion marks, and even color combinations in some cases.

Trademark is defined in the Trademark Act, 1999 as, “trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one

¹⁰ Intellectual Property Rights: Crucial for Fashion Industry (2021) accessed 7 October 2021.

¹¹ ‘Role Of Intellectual Property in The Fashion Industry – Lexforti Legal News & Journal’ (LexForti Legal News & Journal, 2021)

person from those of others and may include the shape of goods, their packaging and combination of colors.”¹²

A trademark is violated under this Act if:

• In case the trademark is a duplicate of a registered trademark with a few modifications or changes.
• In case the allegedly infringing mark is printed or utilised in advertising.
• In case the infringing trademark is utilised in commerce
• In case the mark utilised is sufficiently similar to a registered mark that a customer is likely to be confused or deceived when picking a product category.

Trademarks are very important to the fashion industry. The production of counterfeit goods and knockoffs by unauthorized parties may be limited in some instances by trademark laws. For instance, the “distinctive Gucci GG Logo” and the “Gucci Trademark” help to identify and differentiate Gucci products from those made by other companies. Brand name assists with keeping a glory premium for a specific brand and can be very significant.¹³

In Louis Vuitton Malletier v. Atul Jaggi and Others, the Delhi High Court awarded damages to the defendants for infringing on and passing off their well-known trademarks “LOUIS VUITTION” and “LV” by using identical marks. Law of Trademarks Designers can use trademark law to protect unique product characteristics as well as brand names and logos. For instance, Burberry is the owner of the trademark for “Burberry distinctive Plaid.”

In the case of fraudulent trademark application and sale of products bearing a false trademark, Sections 104 and 103 provide for imprisonment for not less than 6 months and up to 3 years, as well as a fine of not less than 50,000 rupees and up to 2 lakh rupees.

Trademark law most likely has the greatest impact on fashion. It’s the brand or logo. It might likewise be in excess of a name. There is a trademark for every great brand, including Calvin Klein, Dior, Chanel, Gucci, Louis Vuitton, H&M, and Tiffany & Co. These are well-known brands with trademarks. The primary objective of trademark law is to avoid consumer confusion

¹² TRADEMARK ACT,1999 -https://cleartax.in/s/trademark-act-1999

¹³ ‘Role Of Intellectual Property In The Fashion Industry – Lexforti Legal News & Journal’ (LexForti Legal News & Journal, 2021)

in the marketplace. The right of a brand to make money is protected by trademark law, and it also helps customers tell the difference between genuine and counterfeit goods.

RECENT CASES

In the fashion industry, a few less well-known but nonetheless significant decisions are up next:

1.     Mr. Aditya Birla Fashion and Retail limited vs Manish Johar14

Under the brand name “ALLEN SOLLY,” which has held copyright under the Copyright Act 1957, the offended party is claimed to be occupied with assembling and had all the earmarks of being like the complainant’s imprint, they will suspend utilizing their brand name, change the sign of their brand name, and discard the stock that conveys a sketchy brand name. Selling clothing, shoes, perfumes, and other fashion products all over the world. By fraudulently using the plaintiffs’ labels and marks, copying their aesthetic characteristics, and trading in their fashion products, the defendant was accused of violating the copyright and trademark rights of the plaintiffs. Comparing the marks of the plaintiffs and the defendants reveals that the defendants’ label was designed to mislead and confuse customers who instructed the defendant to hand over the counterfeit goods to the plaintiff for destruction.

2.     AG vs Export Fashion, on 20 Nov 2018 15

Adidas was a German company that was involved in the production, trading, and global distribution of numerous sportswear and accessories. Its headquarters are in Germany. The plaintiff was the sole owner of the trademark and had complied with the relevant provisions of the Copyright and Trademark Acts. The respondent, who ran a company that sold discounted sportswear and accessories, was accused of fabricating the names of the people who had been insulted and selling low-quality goods, both of which contributed to the company’s poor reputation. The court issued a mandatory and permanent injunction preventing the defendants from using the plaintiff’s labels after

¹⁴ Section 14 in the Copyright Act, 1957

N.R. Dongre and Ors. vs Whirlpool Corporation and Anr. on 21 April, 1995 Section 21 in the Copyright Act, 1957

the Copyright Act, 1957

Section 2 in the Copyright Act, 1957

¹⁵ Tm•1421/2016 vs Export Fashion on 20 November, 2018

determining that the defendant’s business violated the plaintiff’s exclusive rights. In addition, it stated that the defendants were not permitted to exclusively sell products bearing forged marks. Also, the defendant and the complainant were made up for the lawful expenses. The court stated that the complainant had a non-severable right and a name that could not be separated from their work and products because the offended party had used the brand name for a long time.

3.     M/s Oliver Bernd Frier GmbH and others vs M/s Rasul Exports and Anr.16

The court decided that since the offended party’s name had been used before in the market, it would continue to leave its mark. Additionally, the defendants were innocently utilizing their own trademarks which appeared to be similar to the other company and thus they will discontinue using the same.

4.     Ritika Pal Ltd vs Biba Apparels Pvt Ltd on 23 March 201617

In this instance, the complainant claimed that the defendant was fabricating goods and selling them using designs and motifs protected by copyright. The Court said that the designs and sketches of the complainant could have been registered under the Design Act 2000, but they were registered under the Copyright Act 1957, so the defendant was not liable. In accordance with the Copyright Act of 1957, the complainant lost its exclusive design rights because it had produced its designs and motifs more than 50 times. The defendants were therefore found not liable.

5.     Rolex SA vs Alex Jewellery Pvt Ltd. on 15 Sept 2014 18

The complainant promised not to be harmed in any way by the use of his trademark. The respondent was given a long-term injunction to stop it from using the complainants’ name in a dishonest way and using the complainants’ image to make money and be generous. It was determined that the defendant had committed passing off and violated the plaintiff’s trademark.

¹⁶ M/S S. Oliver Bernd Freier Gmbh & … vs M/S Rasul Exports & Anr. on 5 February, 2014

¹⁷Ritika Private Limited vs Biba Apparels Private Limited on 23 March, 2016

¹⁸ Rolex SA vs Alex Jewellery Pvt Ltd. on 15 Sept 2014

CONCLUSION

In conclusion, we can observe how the Indian fashion industry and IPR law has developed and emerged as a benefit. In any case, in Ritika PVT Ltd v/s Biba¹⁹, we can obviously perceive how the respondents went without any consequence subsequent to encroaching the freedoms of the Offended parties. As a result of the absence of a policy that is both effective and efficient in protecting in-house designers, the Indian fashion industry is now in debt. Moreover, the time it takes the jury to conclude whether a demonstration is an encroachment is incredibly lengthy. The product’s time period expires until it is determined, costing the designers a lot of money. Therefore, a group of fashion experts ought to be assembled to deliberate on such matters, allowing for prompt decisions. This is problematic because fashion design is one of those industries in which some designs can be traced back to earlier designs. Numerous fashion industries are now licensing their trademark to small production houses, which is bringing in a significant amount of money. For instance, Armani is limiting piracy by operating three distinct lines, Armani Exchange, Giorgio Armani, and Emporio Armani. However, in order to encourage creativity and innovation at all levels, the government needs to take action and pass laws that are both effective & efficient. Designers may find these laws beneficial and reassuring.

BY: DIYA KULKARNI UPES SOL DEHRADUN 3^RD YEAR BBA LLB

¹⁹ Ritika Private Limited vs Biba Apparels Private Limited on 23 March, 2016