Fashion and Intellectual Property

Intellectual Property is the basis for protecting your concept and your idea, regardless of whether you are in Fashion or in any other industry. Intellectual Property is the body of Law that protects the creative process. Intellectual Property is simply an intangible property. The ideas are not protectable, but artistic expression of an idea is. Intellectual Property Law is basically a mix of Trademark, Copyright and Patents.

Fashion industry covers a wide ambit of Intellectual property rights within it. Fashion industries are just only with collection of clothes but also footwears, jewelry’s, accessories etc. fashion industry is rapidly growing and many Indian Designers such as Ritu Kumar, Rahul bal , JJ Valya have succeeded in protecting their fashion designs.

As per study conducted by the associated chambers of commerce and industry India (ASSOCHAM), the domestic designer apparel industry in India by year 2020 will cross over Rs 11,000 crore. Even though contribution of Indian designer worldwide is minimal to 0.32% but by year 2020 it may reach by 1.7%.

Trademark

Trademark Law probably has the biggest impact on Fashion. It’s the brand or the logo. It can be also more than just a name. Every great brand has a Trademark like Kate Spade, Calvin Kevin, Ralph Lauren, Channel, Gucci, LOUIS VUITTON, H&M, Tiffiny & Co. etc . All of these brands are well known and Trademarked. I believe that the real primary purpose of Trademark Law is to avoid confusion in the marketplace amongst costumers.

Can you Trademark Colour?

Christian Louboutin V. Yves Saint Laurent[1]
This case can be said to be landmark case to create awareness in public regarding the Fashion Law. A Trademark case involves Christian Louboutin and his red soles. Christain louboutin is a French designer who has Trademarked in the US and in a number of other countries around the world. It is widely recognized that when you see that red, you knew it its Christian Louboutin shoe. It is very high definition of Trademark.

Ferrari red, tiffinay & co. colour blue. There are many companies that have established good Trademark rights in color.

Copyright protection

A Copyright is nothing more, nothing less, than a right to Copy. Its designed to encourage more artistic creation and expression by giving creation control. The moment you put pen or paper to draw a design or drawing, creating sculpture or compose a musical piece , you have a Copyright in that work. Overall, the cut and silhouette and shape of a dress is not protected by Copyright Law. You don’t want Copyright to protect, for example the cut of Jacket because Jacket has two arms and buttons, think of your standard blazer.

For example Diane Von Furstenberg wrap dress, the wrap dress itself is not protectable, but the design is protectable.

Star Athletica V. Varsity Brands[2]

The star case Athletica case dealt with a simple question which is if you have series of sizes and shapes on an article of clothing, is that protectable? An employee of this company that made pretty much all the cheerleaders uniform in the country went to another country and copied some of the designs of his original employer. His new company was sued for Copyright infringement. The Court looked into two different aspects of the designs. Theirs is the more Utilitarian Design , Like the cut of the uniform, versus the designs, the images that were on the uniforms. The Court states that the Copyright would not protect the cut of the apparel , but would protect the design.

In Rajesh Masrani v Tahliani Design [3] 30the Division Bench of the Delhi High Court was provided with an opportunity to respond to some aspects highlighted above. In the case, the Plaintiff alleged that the drawings which it made in the course of developing garments and accessories were artistic works under Section 2(i)(c) of the Copyright Act, 1957. The patterns printed and embroidered on the fabric were also alleged to be artistic works, as were the garments finally designed. The plaintiff also alleged infringement of copyright in these various artistic works, and a Single Judge issued an interim injunction in its favor.

Piracy

Piracy is very common in art and design industry. It involves unauthorized copying of original fashion designs. Designs are counterfeited and knocked off.
Designs made by fashion designers can be protected under various categories of Intellectual Property as follows:

  1. The sketch design can be registered as artistic work under copyright act, 1957.
  2. Design can be well protected under desgins act under class 02,03,05,10 and 11 of third schedule of design rules 2000).
  3. Colour combinations can be protected under copyright act,1957.
  4. Fabric or any material used in art or design can also be protected under designs act, 2000 and patents act 1970.
  5. Logo designs are protected under the trademarks act, 1999. Louis Vuitton handbag covered with repeating pattern of brand is well known by LV mark.

Revelant Legal Provisons relating to this Industry

IPR Law in India provides protection to the fashion design under three legislations i.e.

  1. The Designs Act, 2000,
  2. The Indian Copyright Act, 1957,
  3. The Trademarks Act, 1999 and GI Act, 1999.

From the perspective of Fashion Industry, the Acts do not protect the entire garment as a whole; rather it protects the particular/individual aspects like shape, pattern, colour etc. of the garment.

  1. Protection under Design ActThe Designs Act 2000, is drafted for the protection of the non-functional aspects of an object, having visual appeal, such that design that include the features of shape configuration, pattern, ornament or composition of lines or colours applied to any two dimensional or three dimensional or on both forms. Such a design right remains in force for a period of ten years, extendable subject to conditions, for a total period of 15 years.

    Section 22 of The Design Act [4]states that in the case of piracy of a registered design, the infringer shall be liable to pay the registered proprietor of the design a sum not exceeding Rs25,000 recoverable as a contract debt; if the proprietor elects to bring a suit for the recovery of damages for any contravention of the rights conferred to him and for an injunction against repetition of it, damages may be awarded and the person may be restrained by injunction.

    The design registration system in India is time bound and the fastest of all IP registration procedures. Once registered the proprietor enjoys monopoly and exclusive rights not only against copies of the protected design, but also against substantially similar products.
     
  2. Protection under Copyright ActA fashion design which is capable of being registered as design under the Designs Act, 2000[5] and registered as per the provisions of the Act will get copyright protection only under the Designs Act and nowhere else. In this scenario, copyright in registered fashion design will subsist for a maximum period of fifteen years. Fashion design, which is capable of being registered as design under the Designs Act, 2000 but not so registered will get copyright protection under the Copyright Act, 1957. Copyright in fashion design, in this context, will subsist up to fiftieth (50th) reproduction by an industrial process of the article to which design has been applied.

    Section 15 of The Copyright Act [6]provides for special provisions stating that copyright shall not subsist in any design, which is registered or capable of being registered under The Design Act. Another important parameter of this provision is that copyright in the design shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or with his license by any other person. This clause stymies the inherent protection accorded by copyright that a person enjoys merely by virtue of creation.

    The original artistic work, as contrasted with the applied artistic work i.e. the design would continue to fall within the ambit of artistic work under copyright Act and shall be entitled to full period of copyright protection. The commercial/industrial manifestation of original work such as the design derived from and founded upon the original artistic work for the purpose of industrial production of furnishings would be covered by the limitations under Section 15 of the Copyright Act.

    To protect his/her creations under the Copyright Act, 1957, Fashion designer needs to prove:
    1. That his/her creation is an original artistic work within the meaning of the Copyright Act, 1957 and is not a design within the meaning of the Designs Act, 2000; and
    2. That the article (e.g. garment), to which the design derived from the creation has been applied, has not been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.

     
  3. Protection under Trade mark Act [7]A trademark is useful for a fashion design only in a situation where it is visibly integrated into design to such an extent that it becomes an element of the design. There is a growing tendency among fashion designers to incorporate a trademarked logo on the outside of the garment at the time of creation of clothing and accessory designs. In these circumstances, the logo becomes part of the design, thus trademark provides significant protection against design copying. Further, the brand names as such also become the subject matter of protection under the Trade Marks Act, 1999.
     
  4. Protection under Geographical Indications Act, 1999 [8]The Fourth schedule of the GI Act provides for a classification of goods protectable under the Act. The registration of geographical indications evidently depicts the protection of fashion apparel vis-a-vis the texture and artistic value in the fabric used to create apparels and accessories. Till now about, 15 kinds of GIs have been registered in respect of textiles in India like Kasuti Embroidery from Karnataka, Kutch embroidery from Gujarat, and Sujini embroidery works from Bihar, etc.

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