ABSTRACT
This paper aims to provide the importance and connection of the Fashion Industry and Intellectual Property Rights. Many designers in the fashion industry produce new creations of styles and designs which needs protection from duplicity. Fashion is art and all artistic work can be protected by IP rights, which are provided under four legislations, that is, The Designs Act, 2000, The Indian Copyright Act, 1957, The Trademarks Act, 1999 and Geographical Indications Act, 1999. All such rights and provisions are further discussed in this paper with relevant case laws. IP rights do not protect the complete garment rather it safeguards a particular design, shape, pattern, colour, etc of the garment. The motive of the researcher was to concentrate on the notion that IPR and the fashion sector complement one another. The author has also concluded the entire paper at last and also expressed a few suggestions which could make the system of intellectual property rights more strong and effective, as the current provisions are not sufficient to protect the Fashion Industry in India.
Keywords: Fashion Industry, Intellectual Property Rights, Artistic Work, Designs, India.
INTRODUCTION
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect.[2] Intellectual property rights are a set of rules that protects such intangible creations of people. IP rights include copyright, patent, trademark, trade dress, trade secrets, etc. The need and use of Intellectual Property in the fashion industry is expanding as each day passes by. The Fashion industry is a huge market which is associated with designing, manufacturing and selling clothes, bags, shoes, accessories, etc. Nowadays, many fashion trends are emerging globally, which needs to be protected so that one cannot copy others’ product for their own benefit. It is of utmost importance to register one’s Intellectual property as it prevents the duplication or imitation of a product. In the world of so many fake and replicated products, IP provides recognition to designers and manufacturers of their products.
In the fashion market, many people produce similar products of an original fashion design and sell them at a lower price with a different label. This particular practice is not unlawful but if someone proves that the similarity is near to deceive a designer, then legal action can be taken against it. A counterfeit is an exact copy of an original product sold at a lower price in order to violate the original designer’s trademark. This practice is unlawful and therefore many big brands like Gucci, Prada, Chanel, Coach, etc invest million dollars in lawsuits against counterfeiters of their unique designs and products. The need for original work protection arises from the fact that whenever something new comes up in the market, designers and manufacturers start to imitate the same rather than producing their own original products. IP rights increase the reputation of a brand by making it more reliable and genuine in the eyes of the customers. In this competitive market, intellectual property rights are the backbone of the fashion industry.
RESEARCH METHODOLOGY
The study titled- “The Significance of Intellectual Property Rights in the Fashion Industry” is constructed on descriptive, doctrinal and secondary research methodologies. Doctrinal research is the fundamental idea of analysing, interpreting and referring to the available and primary data, such as the Constitution, laws, acts, etc. To broaden the viewpoint and critically analyse the issue, the researcher has also used secondary research methodology, including information from internet websites, articles, blogs, etc. By using all these research methodologies, the researcher has put in the best efforts to prepare and present this work.
REVIEW OF LITERATURE
- Utility of Intellectual Property Rights Protection in the Fashion Industry: An Analytical Study[3] – This is a research paper written by Karen Bobby. This literature explains what really fashion is and what the Fashion Industry comprises. The researcher has used descriptive and survey methodology to explain the connection between Intellectual Property rights and Fashion Industry. The author has also focused on the Design Act of 2000 and very well explained its provisions and loopholes. He has also explained, how fashion designs can be protected under the existing intellectual property rights regime and what is the significance of IP rights for fashion designs.
2. The Role of IPR in the Fashion Industry[4]– In this article, the author explains the concept of knockoff and counterfeit in the fashion market. Further, the author discusses the correlation of fashion industry with copyright, trademark and patent with relevant case laws. At last, the author concluded the importance of intellectual property in the fashion industry. This article is very well structured and is a good read for gaining insightful information regarding IP rights.
3. Importance of IP in the fashion industry[5]– In this article, the author has explained from scratch about IP rights and what all types of it are applicable in the fashion industry. The author focuses on the improvements of a brand’s reputation and growth with the use of IP rights. The author further discussed a few relevant legal cases related to the study which enables the readers to understand more about the concept. This article also talks about the registration of IP rights. This literature is very well informative regarding intellectual property rights.
FASHION AND COPYRIGHT
Copyright refers to the legal right to copy anything. The provisions related to copyright are given under The Copyright Act, 1957. Copyright helps to ensure that the genuine producers of the items and those to whom they provide authorisation have the only right to replicate the product. All creative, artistic, musical, and literary work is protected by copyright[6]. Under the Copyright Act, the artistic work related to printings/designs/patterns etched or imprinted on textiles/fabrics/apparel/garments are protected.[7] Section 2(c) of the Copyright Act of 1957[8] provides protection for the artistic design work. It includes a painting, a sculpture, a sketch, or any other artistic creation.[9] It protects works that are unique in some way. Copyright does not protect the functional part of the design on the other hand The Design Act, 2000 protects the aesthetic and design elements of any design, such as the shapes, configuration, patterns, ornamentation, lines, and colours. Under this act, the design can be protected for 15 years and the registered design will automatically be protected by copyright.
The design is protected under the Copyright for a term of ten years, from the date of registration. The duration for which copyright is provided is the author’s lifetimes plus 60 years from the year of the author’s death. Under this act, only works of artistic design or architecture can be protected; clothing, footwear, or any other items associated with the fashion industry are not protected. Copyright is very important in the fashion industry as it protects the artist’s creativity. For instance- a fashion illustrator can be protected to be copied by a copyright. This way, the art is protected and can only be used by the creator of that design or the people who are permitted to use that design. Section 15(2) of the Copyright Act mentions that no copyright can subsist in the drawing and sketch under the Indian Copyright Act once it is produced more than 50 times.[10] In the case of Unicolor, Inc. v. Urban Outfitters, Inc[11]; the court directed that the print pattern of a woman’s dress can be copyrighted, and if anyone makes a replica of that design then he will be sued for infringement.
FASHION AND TRADEMARK
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.[12] A trademark is governed by the Trademark Act, 1999. Trademark helps in preventing the likelihood of confusion in the minds of customers regarding the brand name, symbol, quote, etc. A trademark provides recognition to a brand which cannot be copied by any other company. Big brands like Nike use a tick mark as its recognition, Adidas uses three stripes as a trademark, Christian Louboutin uses red soles as its trademark and Bettina Liano’s uses pocket stitching on the clothes as a trademark. Other big brands like Zara, H&M, Michael Kors, Louis Vuitton, etc use their own trademarks which helps them to stand out in a competent market. A trademark brand must be registered in order to be protected from any imitation. Brands are shielded by trademarks from having an identical mark that could mislead and turn away potential customers. If a designer uses a registered trademark, then his products are viewed with less style and quality. Moreover, consumers look down on such designers. Depending on the nature of trademark infringement, the offender is punished as per the provisions provided in the Trademark Act.
Another commonly used term is “trade dress”, which can be considered a sub-part of trademark law. Trade dress can refer to a product’s exterior, interior design, packaging, size, texture, colour combinations or arrangement. It also covers the colour and sound of any goods or object, like the distinct style and colour of an Adidas shoe. Trade dress can be used to safeguard an item’s overall design, including its trademarks. Mostly the designers use trademark protection rather than designs and patents, as registering a trademark is cheaper, convenient and less time-consuming. For getting a trademark, the designer needs to fill out the e-trademark application of the Trademark Registry on the Intellectual Property India website under the Trademark Act to get his/her products registered for the same.[13]
FASHION AND PATENT
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem.[14] Patent law is governed by the Patent Act, 1970 and the Patent Rules, 2003. Patent implies a development that uses new technology to produce goods like shoes and textiles. A patent provides a property right that gives exclusive rights to the holder to solely get benefit from such invention for a limited period time and prevent others from selling, manufacturing, or utilising the innovation. Generally, patents are of three types- utility patents, plant patents, and design patents. Design patents give security for 14 years and utility patents give security for 20 years from the date of filling. After the said period ends, the innovation enters the public domain and can be legally used by anyone.
The fashion sector does not use patent law all that frequently as artistic creations can’t be patented, the technological sector has a greater prevalence of them. A patent can’t be given to a new pair of shoes as it is not an innovation but a new creation. In the fashion industry patents are mainly provided in the technical and industrial sectors because they have a high scope of producing new inventions. Patents can be provided for wrinkle-free fabrics, water-repelling textiles, etc. To get a patent, technical information about the invention must be disclosed to the public in a patent application.[15]
Patent registration is an expensive and time-consuming process. NIKE, Inc. v. SKECHERS USA[16], this is a very popular case of patent violation. In this case, Nike Inc. sued Skechers USA for using footwear cushioning in their shoes which was originally invented by Nike. Many such patent infringement lawsuits have been filed in the fashion industry.
FASHION AND GEOGRAPHICAL INDICATIONS
Another legislation which provides Intellectual Property protection is Geographical Indications Act, 1999. This act provides recognition to geographies which create a specific fashion or style. The objective of the G.I Act is to prohibit an unauthorised person from misusing geographical indications and to protect consumers from deception. Section 8 of the G.I Act provides that the geographical indication may be registered. A registered geographical indication is valid for ten years. A few registered geographical indications in India are- Kutch Embroidery from Gujarat, Orissa’s unique Kotpad tribal textile designs, Sujini weaving and embroidery works from Bihar, and Kasuti Embroidery from Karnataka.
CONCLUSION AND SUGGESTIONS
The fashion industry is booming worldwide and is developing significantly. The fashion sector is creating new styles and designs. For securing these developments, the use of intellectual property is very prominent. The fashion industry can’t ignore the use of copyright, patent, trademark, etc. Eliminating copied products is not impossible. If it is properly safeguarded, violation of IPR will be impossible. Fashion and IP both coexist and one cannot develop without the need of the other. IP law protects the designs created by the fashion industry from the evils of duplicity and plagiarism. Intellectual property rights are crucial not just for fashion but any creative industry.
The current provisions of intellectual property rights are not sufficient to protect the designs and styles produced in the fashion industry as there are many cases where designers imitate other designers’ ideas and products. There exist numerous loopholes in the protection of the fashion industry in terms of IP. To completely abolish this practice strict provisions of IP are necessary and also people must have awareness of IP rights. In order to improve India’s current IP rights system and make it better suited to protect fashion design from theft and fraud, changes must be made.
- Under the Design Act, 2000, the registration of design must be simple and standardised. The existing process is complex.
- Fashion designers need to properly educate themselves regarding IP protection laws so that they can determine which type of IP will be best suited for their products.
- The loopholes in IP rights must be extinct. In order to prosper through intellectual property, individual rights must be sensitised. This can be achieved by addressing the existing loopholes in the protection of the fashion industry through IP.
If the above recommendations are followed, a significant change might be seen in the provisions of IP rights and the use of intellectual property would be more smooth, powerful and effective enough to control the duplicity and piracy of fashion designs. This will also encourage fashion designers to create more new designs and styles and the fashion industry would develop and grow in a prominent way.
AUTHOR
Arushi Singh
Symbiosis Law School, Hyderabad
[1] Author is a student at Symbiosis Law School, Hyderabad, India.
[2] World Intellectual Property Organization (WIPO) (2016). Understanding Industrial Property.
[3] Karen Bobby, Utility of Intellectual Property Rights Protection in the Fashion Industry: An Analytical Study, Vol. 3 Iss 1; 302, International Journal of Legal Science and Innovation, (2020).
[4] Yosha Dubey, The Role of IPR in Fashion Industry, Journal For Research in Applied Science and Engineering Technology, (2022).
[5] Seep Gupta, Importance of IP in fashion industry, https://blog.ipleaders.in/importance-ip-fashion-industry.
[6] The Copyright (Amendment) Act, 1992, No. 14, Acts of Parliament, 1992 (India).
[7] Bhawna Sharma and Oshmi Jaiswal, India: Textile Industry And Design Protection, monday.com, https://www.mondaq.com.
[8] Section 2(c) of the Copyright Act of 1957.
[9] The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
[10] Section 15(2) of the Copyright Act of 1957.
[11] Unicolors, Inc. v. Urban Outfitters, Inc., April 3, 2017, Orrick, H.
[12] Trademarks, https://www.wipo.int/trademarks/en/.
[13] Trademark Registry, Intellectual Property India, https://ipindiaonline.gov.in.
[14] Patents, wipe.in, https://www.wipo.int/patents/en/#basics.
[15] Patents, wipe.in, https://www.wipo.int/patents/en/#basics.
[16] Angela P. Tam, Scuffed Chucks: Converse’s Scuffle, the Federal Circuit’s Overstep, and the Court’s Stance on Trademark Infringement, 40 LOY. L.A. ENT. L. REV. 203 (2019).