SIGNIFICANCE OF INTELLECTUAL PROPERTY IN THE FASHION INDUSTRY

March 20, 2020

INTRODUCTION

 

The core of fashion is considerably more than pieces of clothing and attire. It is an organization's capacity to manufacture and monetize a distinguishable and distinctive brand with intellectual proprietary rights. In view of that, Intellectual Property is a significant law in about each industry because of its capacity to secure creations such as inventions, literary and artistic works, components of fashion designs, symbols and images used in trade and commerce. In spite of the sheer significance of IP, it is ordinarily misjudged. Here is short insight at the various types of Intellectual Property and their applicability to the Fashion Industry. Further, this article is focuses on the improvements in the Indian Intellectual Property Laws for protection of various products in the Fashion Industry.

 

COPYRIGHT AND DESIGNS

 

Copyright is not an absolute right of the owner. Positioning the proprietor’s aspiration to restrict access of his copyrighted works to those ready to remunerate for such access and the public’s interest in freely using the copyrighted work remains a significant issue under Copyright law. Copyright vests in original, literary, dramatic, musical and artistic works[1]. The law requires substantial use of the expression to presume infringement[2]. A person cannot be said to be liable if he has only used an Idea. In India, Copyright is a form of protection provided by the Indian legislature to authors/owners of original works of authorship from the time the works are created and expressed in a tangible form[3]. The Copyright Act, 1957 is in consonance with the Berne Convention for the Protection of Literary and Artistic Works, 1886 and the Universal Copyright Convention, the Geneva Act, 1952. The term of copyright protection is 60 years.

 

The provisions of the Indian Copyright Act, 1957 enables protection with respect to Fashion Designs when it comes under the definition of Artistic works. Artistic works according to the Copyright Act, 1957 refers to a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a [work of architecture] and any other work of artistic craftsmanship[4]. However, Section 15 of the Designs Act, 2000 provides Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 2000. In Rajesh Masrani v. Tahiliani Design Private Limited, Delhi High Court held that since the work was ‘artistic’ in nature, it was not capable of being covered under the Design Act, 2000 and hence Section 15(2) was not applicable[5]. Rohit Bal, a famous Indian fashion designer was sued by Delhi based fashion designer Vijay Laxmi Dogra for infringing the copyright design of later wherein he alleged that Rohit Bal used the sacred symbol in his designs on actor Ranbir Kapoor[6].

 

Numerous components of fashion are protectable under the Copyright Law such as such as drawings, photographs of models, jewellery, editorial content, fabric pattern and design software. In Louis Vuitton Malletier v. Atul Jaggi and Another, Delhi High Court recognized copyright of plaintiff in ‘Toile Monogram’ pattern as well as in the Murakami monograms of plaintiff[7]. In Microfibres, Inc v. Girdhar, the issued was raised that whether the arrangement of motifs, flowers, leaves and shapes which have been arranged in a particular manner would be applicable for Copyright as ‘labour and skill’ in which the court held that such type of work could not be included in the definition of “Artistic works” as provided under Section 2 (c) of the Copyright Act, 1957[8].

 

TRADE MARKS

 

With respect to the Fashion Industry, the trade mark law comes in play when a mark is incorporated into a Fashion Design. Fashion industry is one of the well-known and profit-making industry in any nation. The lack of protection of unique designs in terms of Intellectual Property is the main issue behind the vulnerability of Fashion Designs. As a result, many designers are frequently observed suing for infringement of their fashion designs. Section 2(zb) of the Trade Marks Act, 1999, defines trade mark as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors[9].

 

The trademark law additionally protects the trade dress such as product packaging. However, at numerous instances, the court has explained the trade dress to be an essential component of a design of fashion apparels. A number of courts have decided to the degree that the trade dress involves the total image of a product including size, shape, color or color combinations, texture, graphics or even particular sales techniques and thus it is protected by law under trademarks[10].

 

In the proceedings for registration of the THREE STRIPES of the famous sports brand ADIDAS, the General Court of the European Union ruled against the sportswear brand's appeal for further trademark protection amid rising patent troubles in the sporting goods industry and ruled that the Trademarked Stripes cannot go sideways[11]. Further, Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark, while British fashion house Burberry holds trade mark rights in both the trade mark “Burberry” and the Burberry check pattern[12]. Therefore, it can be said that Fashion Designers, under the Trade mark Law, in addition to the protection of brand names can also protect various components/designs/features of a fashion apparel which are capable of distinguishing such apparels from those of others.

 

PATENTS

 

Patents provided safeguards to such inventions that can be integrated into products. With respect to the Fashion Industry, various examples wherein Patents protection has been granted include the technology used to manufacture CROCS shoes, wrinkle-free fabrics, UV-filtering textiles that are resistant to fire and water-repelling textiles[13]. It must be noted that artistic creations cannot be patented and thus, fashion designers do not opt for protection under the Patents law as such. The trends in fashion are dynamic and change rapidly, therefore getting a patent is not the best option for fashion designers. Further, patents can be extremely costly until there is a fashion design which can be repeated every year. Nevertheless, technical inventions can give a fashion business a great push in the highly competitive market. Fashion patents provide the inventor a legal right to protect his invention, be it a product, design, or process related to the fashion designs. Therefore, by securing a patent on a novel invention, an inventor can safeguard its right to its intellectual property.

 

CONCLUSION

With the awareness of the significance of intellectual property in the fashion world, there is a genuine need to reconsider the range of safeguards that are available to Fashion designs. Fashion designers should educate themselves of Intellectual Property Rights and should attempt to discover the best protection available for their Fashion Designs. However, from the recent trends, it appears that fashion designers are educating themselves and becoming vigilant about their Intellectual Property rights with respect to the Fashion apparels/products. It is crucial to sensitize individuals on their rights over their creation as enforcement of these rights shall enable a nation to achieve prosperity based on its intellectual property.

 

 

 

 

[1] Section 13 Copyright Act 1957

 

[2] Delhi High Court in Zee Telefilms Ltd. v. Sundial Communication 2003 (27) PTC 457 (Bom)(DB) held that when an idea is converted into a concept, it becomes copyrightable.

 

[3]http://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf

 

[4] Section 2(c) of The Copyright Act, 1957

 

[5] Rajesh Masrani v Tahiliani Design Private Limited Indlaw DEL 2023

 

[6] https://www.iipta.com/ip-assets-fashion-industry/

 

[7] Louis Vuitton Malletier v Atul Jaggi and another 2010 Indlaw DEL 1326

 

[8] Microfibres, Inc v Girdhar and Company Others 2006 Indlaw DEL 146

 

[9] Section 2(d), Trade marks Act, 1999

 

 

[10] http://www.iplawsindia.com/ip-in-fashion-industry

 

[11] https://www.businessoffashion.com/articles/news-analysis/adidas-trademarked-stripes-cant-go-sideways-eu-judges-rule

 

[12] https://www.iipta.com/new-trend-season-role-ip-fashion-industry/

 

[13] http://www.lexology.com/library/detail.aspx?g=6c596a24-e79b-4d39-a73f-9837529d9a78

 

 

The article was originally published on www.lexology.com on March 19, 2020 and can be accessed here.

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