FASHION LAWS AND ITS SCOPE IN INDIA

ABSTRACT:

“Fashion is about change. It’s fun to keep changing and to change the silhouettes, to change the fabrics and to change the colour.” – Calvin Klein

What image springs to your mind when you combine the words “legal” with “fashion”? Does adding a stylish annotation to law makes it more or less interesting? Is it feasible for someone who likes law as well as the pomp and circumstance, the glitters, sparkle and glam to work as a lawyer?

India, one of the world’s top manufacturers of cotton, jute, and silk, is steadily establishing itself in the global fashion market. The fashion industry also makes a substantial contribution to the Indian economy. According to a study conducted on July 2022, by the year 2026 the fashion sector is anticipated to develop to a $106 billion business, putting India’s fashion market on the map. Women’s fashion formals and children’s clothing have both grown dramatically. “Success often comes with challenges”, and the fashion industry is no exception. With the growth of this industry, issues based on recognition of brands, protection of their designs, trademarks etc. are being highlighted and thus fashion law also known as apparel law, which is still developing and lacks a clear structure, has recently gained attention as a result of the growing success of the fashion sector.

KEYWORDS:

Fashion, law, fashion law, fashion industry, Indian fashion industry, design, intellectual property right.

RESEARCH METHODOLOGY:

This paper is of descriptive in nature which contains both qualitative as well as quantitative data. Apart from that secondary source such as journals, newspapers and verified websites are used for this research.

INTRODUCTION:

“You can have anything and everything you want in life if you dress for it “- EDITH HEAD.

Fashion is typically viewed as a multi-billion-dollar industry that invests in predicting what we wear and how we want to seem to others. However, fashion is more than just a business. It is also a social and cultural phenomenon that is motivated by a craving for the unique. Clothing, footwear, lifestyle, accessories, make-up, hairstyles, and body posture are all examples of how people express their individuality and autonomy through fashion at a particular time and place in a particular context. India is a country with many different cultures, and one’s clothing says a lot about that culture. The Indian clothing market generates trillions of dollars and employs a large number of people. It’s an intriguing fusion of aesthetics and creativity. Clothes have crossed frontiers to become artistic expressions rather than being restricted to practical purpose. What distinguishes the past from the present in fashion is the aesthetic or innovative element.

Before the word “industry” even made it into the global economic lexicon, India’s fashion industry has a lengthy and illustrious history that dates back to ancient times. Economic liberalisation in the early 1990s finally brought foreign investment to the industry, exposed the Indian public to international fashion trends, and made the remainder of the world look up and become aware of the uniqueness in Indian fashion designs. As a result, India’s once-sluggish fashion industry experienced a phenomenal growth after Independence.

With the economic boon that the fashion industry experienced, Laws were introduced to preserve the industry’s legal, and particularly IP portfolio, and to govern every stage of a garment’s life cycle, from the yarn to the shop windows. Fashion Law is thus an important unique legal field that is expanding in India. In India there is no particular law as fashion law, rather it is an umbrella under which encompasses a variety of law namely contract law, business finance and commercial law, international trade laws, anti-trust and competition law, consumer protection laws, arbitration laws, labour laws, civil laws and most importantly intellectual property laws. Since more people are becoming aware of intellectual property regulations, IP creators who experienced powerless as a result of a massive black market for counterfeit goods are now vigilant. It has now compelled both manufacturers and designers to become more and more conscious of their legal rights and take the required actions to safeguard their interests. In the world of fashion, there is a continuing discussion about the thin line between creativity and theft. It is far too crucial for the various industry entities to comprehend the laws that safeguard them, both from piracy and from claims of infringement, in such a controversial environment.

The aim of this paper is to study try to demystify the emerging domain of fashion law, including its boundaries and relevant legal framework

LEGAL PROVISION:

The Fashion Design Council of India is a major organisation that is one of the supporters of stricter and more comprehensive fashion laws in India (FDCI). The FDCI is a non-profit organisation that supports the Indian fashion industry and aims to ensure its long-term expansion. It coordinates a number of notable occasions, such as the twice-yearly India Fashion Week and the India Couture Week. Apart from that we have Fashion Foundation of India (FFI), Apparels Export Promotion Council (APEC) as emerging organization which protects the fashion industry. Leading Indian designers have come together to form the Fashion Foundation of India (FFI), whose mission is to protect intellectual property rights from arbitrary copying, referencing, and inspiration.

An idea for a garment can be developed or designed, then embroidered into clothing fabrics, styled, published, and given brand protection. This is all covered by fashion law aid. The fashion sector continually produces a large variety of innovative designs that need to be safeguarded and regulated by competent authorities. Because the field of fashion law is broad in scope, it is important to understand what all statutes and rules constitutes this area of law Here are a few crucial laws and how they relate to this topic.

INTELLECTUAL PROPERTY RIGHTS: Intellectual property rights are the privileges people have over the works of their mind. Typically, they grant the inventor a time-limited, exclusive right to utilise his or her creation. It could be a design (industrial design), an invention (patent/utility model), a brand name (trademark), or a literary or artistic creation (copyright).The Universal Declaration of Human Rights (UDHR) also refers to intellectual property rights under Article 27 which states that [1]“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

India’s intellectual property system offers protection through the Design Act of 2000, the Copyright Act of 1957, and the Geographical Indications of Goods Act of 1999. As a result, it appears that the garment and design industries are governed by three different pieces of legislation.

The 1957 Copyright Act protects the works of art in the idea illustrations. The Copyright Act, 1957 mentions “any other work of artistic craftsmanship” in the definition for ‘artistic work’ in S.2(c. Given that designs are also examples of artistic workmanship, it follows that they will be included in this category. A design automatically falls under the definition of an artistic work under Section 13 of the Copyright Act of 1957 when it is materialised from pure imagination and its uniqueness is obvious from its very existence. But there is a specific Act that only exists to safeguard fashion-related designs which is known as the Design act 2000. Significant provisions addressing copyright in designs that are registered or are eligible to be registered under the Designs Act of 2000 are included in Section 15 of the Copyright Act.: –

First of all, a design registered under the Designs Act 2000 will not be eligible for Copyright Act protection. The design must either be protected as an artistic work under the Copyright Act or registered under the Designs Act. It is impossible for them to coexist.
A design that is protected by the Copyright Act but cannot be registered under the Designs Act loses its copyright protection if it is replicated more than fifty times by an industrial process, either by the copyright owner or by someone else with permission from the owner.

Section 2(d) of the Design Act, 2000 lays down the definition of design. According to this provision[2], “design means only the features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye with certain exceptions.”

Since construction methods and everything requiring mechanical devices are not discussed, it merely addresses the aesthetics of a design thus, any design may be filed under The Designs Act and registered in accordance with the Act’s rules, regardless of the fabric or metal on which it is put. An extensive list of goods and objects for which the regulator may ask for an application is included in the third schedule of the Design Rules, 2001.

This design right will be valid for ten years, with the possibility of an additional five years if all other conditions are satisfied.

2)TRADEMARK

A trademark safeguards the precise, distinctive name, logo, and other visual elements associated with your company or product brand. Business names, logos, slogans, sounds, and even colours that are distinctive to a single brand may be protected by a trademark. The range of trademark protection for clothing designs is, however, fairly constrained. The term “trademark” is expressly excluded from the definition of “design” in Section 2(d) of the Designs Act of 2000. As a result, a fashion design that is also a trademark cannot be protected under the Designs Act of 2000, and vice versa for a fashion design registered under the Designs Act.

In a well-known case, Christian Louboutin vs. Mr. Pawan Kumar & Ors [3]the court ruled that Christian Louboutin was a well-known mark and ordered the defendants to pay compensation in the amount of Rs. 10.7 lakhs while forbidding them from ever selling counterfeit goods again. Christian Louboutin shoes with red soles are well known all over the world. The characteristic red coloured heels on their masterpieces, which are popular and widely available in many stores in India, are what make their shoes so well-known among celebrities. The defendants, Kamal Footwear and Adhara Steps, sold the same same products at an extremely low price, harming the company’s brand and financial prospects. This case serves as an illustration of the need for designers to safeguard their intellectual property rights in order to prevent further losses.

GEOGRAPHICAL INDICATION:

India is a diversified nation that has access to a wealth of traditional knowledge. From the Pashmina of Kashmir to the Kanchipuram Silk of Tamil Nadu, from the Muga Silk of Assam to the Surat Zari of Gujarat, Dhaniakhali saree and Baluchari saree from Bengal to Bankura Panchmura terracotta craft . India’s traditional fashion assets have a high economic worth and are not only desirable for the domestic market but are also valuable enough for the global market. Geographical Indication (GI) is characterised by characteristics that efficiently meet the needs of indigenous and local weavers, knitters, and designers. It highlights the combined efforts of the indigenous workers, the importance of traditional knowledge, and favourable climatic circumstances.

All agricultural, natural, manufactured, handcrafted, and industrial items, including food are protected as geographical indications under the Geographical Indications of Good (Registration and Protection) Act, 1999.The list of items that can be protected by this act is listed in its IV schedule, which also includes the protection of fashion apparels with regard to the texture and artistic value of the fabric used to make any such apparels or accessories.

Manufacturing is governed by labour legislation, such as India’s Factories Act, 1948;
Marketing and other business-related matters are governed by corporate law for a fashion firm
Loans and other financial dealings are governed by banking law.
Since the invention of the internet, e-commerce has boosted sales in the fashion business. Laws pertaining to information technology and e-commerce are also significant in the world of fashion
Environment laws and law of contracts are also important in the fashion law industry.

LANDMARK CASES RELATED TO FASHION LAWS.

[4]

FACTS:

Ritika is the owner of the well-known brand Ritu Kumar, and Biba Apparels is the proprietor of the well-known brand Biba. both companies used industrial ideas to make clothing and accessories.
Ritika claimed that Biba had violated her copyright by using Ritu Kumar’s designs as inspiration for its own creations and using those designs to make clothing.
The Designs Act does not recognise Ritika’s designs as registered.

According to Ritika, the sketches and garment prints she produced for the outfits and clothing are original. It is argued that each ensemble’s components, such as the sleeves, front and back panels, etc., are distinct from one another and are coordinated with special characteristics. As a result, copyright protection should be warranted. Biba’s claims are Because the designs of Ritika are industrial designs, Section 15 of the Copyright Act precludes the claim of copyright infringement.

The court determined that because Ritika’s copyright in the aforementioned works had expired, Section 15(2) of the Copyright Act, 1957 precluded the lawsuit. In Ritika’s case, the Copyright Act of 1957’s Section 15(2) applied; as a result, Ritika’s designs lost their copyright after being replicated more than 50 times using an industrial process.

.[5]

In this case the plaintiff, Tarun Tahiliani Pvt. Ltd., is a well-known name in the fashion sector with a reputation that spans more than 20 nations. On the grounds that Rajesh Masrani had reproduced their fabric prints, including the drawings or sketches thereof, or of copyrighted works of the Plaintiff, including works of artistic workmanship, the plaintiff filed a lawsuit for infringement under the Copyright Act against the defendant. According to the Honorable Court, the plaintiff’s work qualifies as an original artistic work and is protected by Section 2(c) of the Copyright Act.

Because the work was an “artistic production,” it is not eligible for registration under Section 2(d) of the Designs Act of 2000, and Section 15(2) is not applicable. The court further noted that the plaintiff’s work had been copied twenty times, negating the need for Section 15 (2) of the Copyright Act, which forbids the continuation of a copyright in a design that can be registered under the Designs Act but has not been done so, on a design that has been copied more than fifty times.

PUMA VS FOREVER 21[6]

Puma has filed a lawsuit against forever 21 in this case alleging copyright and design violation of the sneakers made by them under the names Creeper Sneaker, Fur Slide, and Bow Slide that were a part of the Fenty line that was created by famous designer Rihanna Fenty. The aspect that set this case apart from others was how the question of copy right infringement was handled in regard to the fact that it was particularly created by a celebrity and was also promoted to the public through her name. The court noted that neither Rihanna’s name nor her involvement in the lawsuit was mentioned in the copyright application.

In conclusion, the court ruled that the claim of trade dress infringement was properly rejected, stating that the mere fact that a particular celebrity was associated with or endorsing the product could not justify granting copyright protection, which was properly granted on the basis of design uniqueness. A second plea addressing the activity violation was also accepted.

ROLE AND SCOPE OF A FASHION LAWYER:

Legal concerns with the fashion industry, including those involving design, fabric, apparel, extravagance, footwear, gems, and cosmetics and beautifying agents, are addressed by fashion attorneys for their clients. These encompass anything from approving, promoting, transferring, and diversifying contracts to licencing innovation/intellectual property, business, and labour-related difficulties. They touch on matters of security, manageability, and customer safety. The most significant component of fashion law is also perhaps a combination of other areas of corporate, land, assessment, and business law. Fashion attorneys perform a wide range of duties, from creating and negotiating contracts to acknowledging and litigating matters connected to trademarks, copyright, and other IPRs.

Any fashion lawyer should be completely familiar with the sector. The candidate should have a strong interest in, enthusiasm for, and knowledge of everything related to this area. What makes him stand out in his clients’ eyes as a professional is his legal expertise of this beautiful field. Some companies and designers have a team of fashion lawyers on staff, while others outsource to a law firm that handles the same things.

The employment opportunity for fashion lawyers are in various sectors such as:

Fashion houses
Law firms
Media houses
Fashion labels
Apparel companies. (Such as H&M)

SUGGESTION:

There are significant financial stakes in the fashion industry, which is a high-revenue sector. The current fashion regulations should be known by all, but especially by designers who own high-end companies and designer homes. However, it is clear that, despite the existence of a legal provision to that effect, fashion laws are primarily focused on protecting the interests of large fashion companies and brands, with little enforcement of copyright prevention by smaller merchants and designers. Traditional knowledge (TK) is an active body of knowledge that has been created, preserved, and passed down through the generations. It contributes to the formation of the community’s cultural and spiritual identity. Traditional knowledge includes, for instance, customs, abilities, and knowledge that are handed down from one generation to the next. Since the industrial revolution, the fashion industry has engaged in commercial, profit-driven cultural appropriation and copying. Traditional Knowledge is sometimes taken for granted that it belongs to the public domain and is therefore open to use by anybody. This issue arises from the absence of any framework to control and limit instances of cultural appropriation and the belief that fashion is too functional for Copyright protection. The stakeholders in the fashion and textile industries, including brands, designers, and consumers, must, in turn, demonstrate greater cultural sensitivity and knowledge of the dangers of cultural appropriation, which can reduce the cultural value of the TK and/or TCE and the linked craft.

The Masaai tribes of Kenya and Tanzania v. Louis Vuitton (2012)[7]

With his menswear line for Louis Vuitton, Kim Jones made his debut in June 2011. His time growing up in Kenya was allegedly the inspiration for this “Africa-inspired” collection. For the collection, he received a lot of praise, although many people did not like it. Located in southern Kenya and northern Tanzania, the Masaai are a distinct ethnic group. They are known for being warriors and livestock rustlers, and they lead a semi-nomadic lifestyle. The print from this village was included in Jones’ collection without their knowledge or permission.

Navajo Nation v Urban Outfitters[8]

The Navajo tribe’s prints were used on a wide variety of products that Urban Outfitters released. From clothing to perfume to underwear, the collection featured a wide range of things, all of which featured prints. For the unauthorised use of their designs and the selling of goods bearing their name, the Navajo leaders filed a lawsuit against Urban Outfitters in 2012. Another excellent illustration of how businesses and designers do not feel the need to consult with or acknowledge the sources of their creations is this unauthorised usage of the moniker “Navajo” for commercial gain.

Consent, credit, and compensation are international notions that are applicable in all legal systems. I believe the same should be applied and followed by major industries while copying/taking inspiration from tribal or works by small scale and rural industries.

The aforementioned examples show how the original work of the tribal peoples is not given the proper credit. Not just the tribal people, but also many other brilliant inventions are being stolen by the major companies, and because these people are unaware of it, the major brands get away with it. Since these problems are becoming more prevalent, stronger rules, in my opinion, should be permitted.

It is necessary to adopt a separate code of laws for fashion laws in order to ensure consistency and clarity among all parties with regard to the same.

CONCLUSION:

The necessity to identify and enact pertinent legislation is expanding along with the evolution of fashion law. While France and the USA lead in regulating fashion, Indian regulations do not quite focus on the same. Long before the recent explosion in digital media, there were organisations like FDCI that fought for a substantial segment of the fashion business. However, the challenges that members of the fashion fraternity, both the elite and the smaller players, have encountered have now come to light. As society’s demands change over time, several jurists and academics have identified fashion law as one of the relevant institutions that develops intellectual property rights as the only safeguard for fashion designs. The social and cultural significance of clothing and apparel has significantly changed. Despite the numerous rules that are in place, piracy still seems to be a problem in the fashion sector. The cornerstone of the fashion business is one of homage, reference, and inspiration. The conventional copyright regime would stifle and restrict the open distribution and diffusion of fashion trends, which is a crucial aspect of the fashion industry, due to its restrictive and limited monopoly, as well as the term provided.

Despite everything, there is a great demand for fashion laws today, and if they are given enough attention, they could develop into a significant sector of the law.

-PRAKRITI DUTTA

SYMBIOSIS LAW SCHOOL, PUNE.

REFERENCES:

JOURNALS:

1)FASHION LAW JOURNAL.

2) FASHION STUDIES JOURNAL

3) INDIAN JOURNAL OF INTELLECTUAL PROPERTY LAW

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