Written by : SUSHREE SANGITA and RITUPARNA , BIRLA SCHOOL OF LAW, BHUBANESWAR, 3 RD YEAR, 5 TH SEMESTER
This study seeks to highlight the relevance and interdependence of fashion industry and IPR. Many fashion designers create unique design and fashion that ought to be protected from imitation. The fashion as a form of art is secured by IPRs, which are set forth in statutes that is THE DESIGN ACT 2000, THE INDIAN COPYRIGHT ACT 1957, THE TRADE MARK ACT 1999, and THE GEOGRAPHICAL INDICATION ACT 1999.
This article further goes into the right and provisions reinforced by relevant case examples. It is important to remember that IPRs do not cover an entire apparel but rather particular parts such as; design, firm, pattern, colour and so on. The researchers main focus was to emphasize the harmonious link between IPR and Fashion industry. In the final part, the authors summarize the entire study and make recommendations to strengthen and improve the IPR system. According to the author the present laws fall short of adequately regulating INDIA’s fashion industry.
In this ever-revolving taste of society, a dynamic drapery of creativity and commerce, plays a vital role in modifying our culture towards a new change. The precise artistry of fashion designers, whose out-standing talent act as an inspiration to the trends that fascinate runways and stick through wardrobes across the globe, is the very foundation of this flourishing business. However, among the dazzling variety of notions, a key question emerges that how can the intellectual property rights of these designers be protected in an industry which is characterised by fast inventiveness, short product life cycles, and an on-going chase of the next big trend?
In the fashion businesses, design protection is of utmost important. It not only protects designers and brands but also serves as an urge for innovation. In a multiverse country like India the fashion industry is raising step by step and expanding day by day; it has the most tremendous expansion in the recent decades. It became possible only because of the emergence of the domestic fashion designers, who recently have earned a global recognition.
As all know India has a diverse textile lineage and culture so the design in India started at a very primitive time, with every city and state having its own distinctive local outfit, traditional apparels and decorations.
Fashion is both an art genre and a type of workmanship. Simply it is a form of inventive form of alignment created by an artist who designs and is placed on our bodies, which are blank canvases.
According to the Oxford dictionary, “Art is the expression and application of human creative skill and imagination”. This ability and expertise that makes one of a kind new composition and must now be protected by IPR.
The fashion industry is a worldwide economic force that has a considerable influence on job opportunities, commerce, inventiveness, and a variety of other areas. it creates a wide range of job possibilities in design, manufacture, sells and marketing and also provides considerably to many nations’ GDP. The business also promotes global trade, as items made in one nation are sold in another, and initial supplies are acquired from all over the world. The fashion business is well known because of its creativity and invention, with designers continuously challenging the boundaries in order to offer new designs, materials and processes. Trends in fashion and customer tests fuel the retail industries growth, while advertising and marketing strategies perform a substantial part in awareness of brands and demand from customers. The increased focus of environmental sustainability in the apparel sector has commercial consequences, as ecologically sound practices can entice a diverse consumer segment that priorities with ethical and sustainable purchasing.
RELATION BETWEEN INTELLECTUAL PROPERTY AND FASHION DESIGN:
To safeguard the creative and financial interest of designers and fashion businesses, intellectual property plays a pivotal role. Copy right, design patent, trademark protection, trademark dress protection, trade secret and contracts and licensing are all important part of IP. The right of copy right extends to creative works of authorship, incorporating artistic creation such as drawings, patterns, trends and textile designs. It safeguards the distinctive representation of a concept instead of the concept itself, and it includes unique prints, fabric patterns and some creative features of cloths. The decorative design of a utilitarian object, particularly fashion design features, can be protected by patents on design. They are concern with the physical appearance of an art work and grant protection for an extended time of, often 15 years in the US. Trademark is critical for retaining brand identification, avoiding market disarray, and uniquely distinguishing components associated with a designer of firm. The use of trade dress is to prevent damage of a product’s whole visual appearance, involving packaging and presentation. Trade secrets can be advantageous in safeguarding personal and privately held information that gives a competitive advantage. Contracts and licensing agreements are essential in the fashion business because they allow designers to define how their designs are used, establish payments, and control the extent to which their works are duplicated or changed.
FASHION AND COPYRIGHT:
Copy right assures the authorized producers of goods, as well as people to whom they offer permission to copy the product. Copy right protects any creative, artistic, musical and literacy work. The artistic work which is associated with paintings/ designs, patterns or stamped on textiles/ fabrics/apparels/garments is protected under the copy right act. The artistic design work is protected under section 2 (c) of the copy right act,1957. On the other-hand copyright fails to safeguard the practical aspects of the design. The gaps which are not fulfilled by the copyright act those are fulfilled by the Design act, 2000. This act protects the aesthetic qualities of any design such as forms, configurations, patterns, ornamentations, lines and colours. Under this statute, the design can be secured for a period of 15 years and the officially licensed designs are right away protected by copyrights.
The design is legally copyrighted for 10 years from the date of registrations. Copyright is granted for the life time of the creator, additionally 60 years beyond the year of the death of the author. Things like cloths, footwear, and other items which are pertaining to fashion industry are not protected under copyright, but the work of creativity and architecture is protected under the same.
For example, A fashion artist is potentially be secured of having his/her art work replicated by copyright and his/her creation can only be used by the originator. As per Indian copyright act,1957, section 15(2) no copyright in drawings or sketch can exist if it is made more than 50 times.
UNICOLOR, INC. VS. URBAN OUTFITTERS, INC in this case the court opined that the print patterns of a women’s apparel of garments are subjected to copyright an if anyone tries to infringe by replicating the same design, he/she will be sued for the same.
FASHION AND TRADEMARK:
A trademark refers to a marking that distinguishes one company’s product or services from those of other companies. The trademark assists to reduce the likelihood of client confusion about the brand name, symbol, phrase and so on. A trademark grants a brand notoriety that no other form can replicate. Major companies like NIKE, ADIDAS, BETTINA LIANO, utilise trademarks to distinguish themselves in the market. Trademarks secure companies and businesses from copying their products and deceive potential buyers. Registered brand names keep comparable items from being interpreted as less fashionable or of inferior quality. Designers who employ trademarks that has been registered might encounter undesirable effect that includes customer rejection. Furthermore, such designers are criticised by the consumers. The term trade dress is a category of trademark law to the surroundings, interior designs, packaging, size, texture, colour combinations, and structure of the product. It safeguards the layout of the object including trademark. The creative professionals frequently opt for trademark security over design and patent protection because it is more cost effective, easy to use, and a time saver.
FASHION AND PATENT:
A patent is an exclusive right awarded to an inventor for an invention that provides an entirely novel way of accomplishing something or a technological remedy to a problem. The most prevalent kinds of patent are; utility patent, plant patents, design patents. Design patent provides 14 years of protection whereas utility patent provides 20 years of protection. After the safeguarding period expires the innovation becomes freely available to public domain. Because of the unavailability of artistic achievement in fashion industry the law governing patents is rarely utilised, although it is more frequently prevalent in the technology sector. Patents are most frequently authorised in the field of technology and industry, like as wrinkle free fabrics and water repellent textiles. These are not new inventions but novel creations so the technical information about these needs to be revealed to the general public in through the patent application in order to be eligible to receive a patent.
FASHION AND GI:
The areas that generate unique fashion or style are recognised by the GI act 1999 which protects the IP of the same. It tries to safeguard customers against dishonesty and disinformation by prohibiting unlawful use of geographical indicators. For example, Gujarat’s Kutch embroidered, Odisha’s Kotpad tribal textile patterns, Bihar’s Sujini weaving and embroidered works and Karnataka’s kasuti embroidery.
The worldwide industry of fashion is expanding rapidly introducing new trends and patterns. The concept of IP serves a vital role for preserving and securing these innovations. This encompasses copyright, patent and trademarks within its periphery. Appropriate protection of these rights prevents infringement of any kind of IPR. Fashion and IP exists along side of one another and effective protection from duplication or replicating is necessary. IP law protects inventions developed by the fashion industry, rendering it as an important instrument for any innovative enterprise.
OBSTACLES IN PROTECTING THE DESIGNS:
The statutory procedures set in place for maintaining a products visual appearances are commonly referred as design protection. While protecting the designs serves as essentials for boosting innovation and restricting unauthorizing usage of the design. Some major issues in safeguarding the designs are as follows:
ü SUBJECTIVITY AND INTERPRETATION-
Since design protection relies upon the visual appearances of a good, subjective criteria are utilised frequently. Evaluating the uniqueness and individuality of an art work can be subjective and suspectable to interpretation, making it difficult to carry out design protection rules systematically.
ü LIMITED DURATION-
Design protection often has a shorter life span as compare to other type of IPs such as patents and copyrights. This short time scale might not be adequate for some industries or goods with a longer life span.
ü GLOBALIZATION AND DIVERGENT STANDARD-
As firms operate on a world -wide basis, the protection of design meets issues owing to a lack of standardization in design legislation across different nationals. Various standards and regulations make it difficult for enterprises to set up and uphold the design rights overseas.
ü RAPID TECHNOLOGICAL CHANGES-
In our business where tech and innovations play a significant part in design, rapid technical improvements may make it difficult for design protection legislation to stay up. Designs that use new technology might not integrate comfortably into established legal system.
ü HIGH COST OF PROTECTION-
Acquiring and implementing the safeguards for designs can turn out to be expensive, especially for small and medium size enterprises. Some firms might discover the expenditures of lodging design applications, up keeping expenses and legal action prohibitive.
ü REVERSE ENGINEERING AND INDEPENDENT CREATION-
It could potentially be challenging to demonstrate that an alleged infringement replicated a design instead of independently coming up with an analogous one. Reverse engineering and independent creation may render protecting design rights more challenging.
To address these issues, legal frameworks, corporations and international organizations must collaborate to develop a more cohesive and efficient framework for design protection.
COUNTERFEITING AND PIRACY OF DESIGNS:
Design theft and forgery offers significant challenges to designers, firms and the economy as whole. The challenges have an opportunity to affect a wide range of businesses, from fashion and consumer products to electronics and automobiles. Mention belows are some significant characteristics of design piracy and counterfeiting;
The act of counterfeiting and piracy generate a huge financial damage for legitimate firms. The income vested in attributed to the purchase of counterfeit items may be enormous, hurting profitably, expenditures in innovation and overall economic growth.
The replica products frequently fail to meet the excellent quality and standards that accompany with genuine goods. When people deliberately acquire forged items, they might have ended up with an unpleasant experience with the product, causing the real manufacturer’s brand reputation to deteriorate.
Clone items may violate the security standards and laws, exposing consumers to danger. When products such as gadgets, medicines, and automobile parts are imitated, they fail to fulfil security as well as efficiency standards.
The spread of fake items through online platform has been enabled by the introduction of e-commerce. Counterfeiters more often operated through internet pages and digital marketers, rendering it difficult to detect and prosecute them.
COLLABORATION AND INFORMATION SHARING-
Comprehensive cloning strategies encompasses collaboration among governments, corporations, and international organisations. Information exchange, co-operative inquires, and integrated efforts may strengthen the capacity for combating counterfeit items on a world-wide scale.
The act of counterfeiting and designing piracy necessitates an integrated approach which consists of legislative measures, collaboration across borders, outreach to consumer, and the adoption of novel technology to secure and uphold IP rights.
1. Mr. Aditya Birla fashion and retail ltd. Vs. Manish Johar
The plaintiff a global fashion product producer and sells firm, has been accused of producing and selling fake merchandise under the name of ALLEN SOLLY. The defendant is an accused of infringing on the plaintiff’s copyright and trademark rights by frequently utilising their brand levels and trademarks. The court determined that the defendants label was intended to mislead the buyers, and directed them to turn over counterfeited items to the plaintiff for destruction. The plaintiff alleged that the defendant’s conduct was fraudulent.
2. Adidas AG vs export fashion on 20th November 2018
Adidas, a German firm, was accused of copying its trademarks and selling low-quality goods, prompting a lawsuit. Adidas was the only owner of the brand and conformed with copyright and trademark regulations. The defendant, a distributor of sports accessories and apparel, was accused of distributing counterfeit items and causing market mistrust. The court deemed the defendant's corporation accountable for infringing on the plaintiff's exclusive rights and ordered a permanent injunction prohibiting the defendants from utilising the plaintiff's labels. The court also granted the complaint the expense of the lawsuit. The lengthy and continuous use of the trademark afforded the complaint a non-severable right and synonymous name with Adidas' products and services.
3. M/S Oliver Bernd frier GmbH and others vs. M/S Rasul exports and Anr. On feb 2014
In the preceding instance, the plaintiff accused the defendant of utilising the trademark "Olive," which is similar to its internationally recognised brand name "Oliver." Being in a similar fashion industry as the defendant, the complainant was losing money because there was a misunderstanding among the public purchasing items online and offline that both trademarks belonged to the reputable complainant.
The court ruled that because the plaintiff's label had previously been used in the market, it was allowed to keep its mark. And, because the defendants were using their own trademarks inadvertently that seemed to be similar to the complainant's mark, they must stop using their trademark, modify its mark, and dispose of the stock in question.
4. Ritika Pal Ltd vs. BIBA apparels Pvt Ltd. On 23rd march 2016
In this case, the plaintiff accused the defendant of utilising its copyrighted designs and motifs to manufacture things and trade on them. The Court ruled that the defendant was not responsible since the complainant's designs and drawings, while capable of being registered under the Design Act 2000, were registered under the Copyright Act 1957. Because the complaint had created its designs and motifs more than 50 times, the complainant lost its exclusive design rights under the rules of the Copyright Act of 1957. As a result, the defendants were found not responsible.
5. Rolex SA vs Alex jewellery Pvt Ltd. 15th September 2014
In this instance, it was shown that the complainant was involved in the worldwide watch sector, and the defendant utilised its label and brand to create and sell jewellery.
The complainant alleged that his trademark rights had been violated.
It was determined that the defendant was guilty of passing off and infringing on the plaintiff's trademark, and a permanent injunction was issued against the defendant to prevent it from using the complainants' label dishonestly and earning gain and good-will by encashment of the complainants' brand's reputation.
FUTURE TRENDS AND RECOMMENDATIONS:
In the field of Fashion and design protection, protecting the intellectual property serves a vital role for stimulating innovations, supporting creativity and ensuring the economic viability of designers and enterprises. Here are some prediction and suggestions for the future;
DIGITAL INNOVATION AND BLOCK CHAIN
Block chain incorporation is a measure trend in the fashion business. Block chain technology may be exploited to identify and violated the originality and proprietorship of design, giving a safe and visible means for tracking a fashion product’s full life span.
AI AND MACHINE LEARNING DESIGN RECOGNITION:
It may be implemented to generate sophisticated architectural design recognition systems. The technologies may assist in finding possible instances of design infringement through comparisons of designs and patterns, allowing designs and authorities to take appropriate action in timely manner.
SUSTAINABLE DESIGN PROTECTION:
With a rising awareness of ecology in fashion industry there’s been a trend incorporating environmentally friendly practices into design protection. This involves taking into account the ecological impact of designs as well as promoting sustainable and moral design practices.
CUSTOMIZATION AND PERSONALIZATION:
The tendency for personalised and customised apparels and accessories raises design protection issues. A future concern will be foregoing a balance between safeguarding customized styles and encouraging customers to personalised their purchase.
EDUCATING DESIGNERS AND BUSSINESSES:
Offering designers and companies knowledge and training on the value of design protection, highlighting the rewards and procedures involved, may empower them to proactive measures to secure their inventions.
INTEGRATED INTELLECTUAL PROPERTY STRATEGIES:
Design professionals should employ comprehensive IP strategies that take into account patents, trademarks, and copyrights alongside to design protection. This comprehensive method has the potential to give complete coverage for many elements of IP in fashion and design industry.
PRO ACTIVE MONITERING AND ENFORCEMENT:
Designers and corporations ought to invest in proactive monitoring technologies to uncover the possible cases of design infringement. This enables them to take rapid compliance steps in order to protect their innovations.
Finally, fashion and design protection play an important role in developing innovation, encouraging creativity, and protecting the interests of designers and firms in the fashion sector. However, there are various issues in this area that must be carefully considered and addressed in order to improve protection systems. The complications of design protection are exacerbated by the subjective nature of design, the quick rate of technical development, and the globalised character of the fashion business.
As the fashion and design scene evolves, changing legal frameworks, adopting technology solutions, and cultivating a culture of intellectual property rights respect will be critical. By tackling these issues together, the fashion and design industry can foster an atmosphere that fosters creativity, safeguards innovation, and ensures the economic sustainability of designers and enterprises alike.
 April 3, 2017, Orrick, H