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Application of IPR to the Indian Fashion Industry and Its Flaws: A Legal Study

Paper Details 

Paper Code: AIJACLAV3RP152023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Ayman Naveed, “Application of IPR to the Indian Fashion Industry and Its Flaws: A Legal Study", 3, AIJACLA, 129, 129-134 (2023), <https://www.aequivic.in/post/application-of-ipr-to-the-indian-fashion-industry-and-its-flaws-a-legal-study>

Author Details: Ayman Naveed, Lecturer, St. Joseph College of Law, Bangalore





Abstract

Fashion implies creativity. In the simplest scene, it's the popularity of a particular style of clothing or accessories, makeup, or anything else a person might use to make themselves look a certain way. The fashion business is one of the most important businesses in today's competitive world. People use fashion to differentiate themselves from others and stand out in a crowd when there is a lot of competition. Fashion must be protected because it is the result of human imagination and creativity. The fashion industry is growing every day. The extent of the design business is very immense. India is one of the largest markets for fashion products. In India there is no extraordinary regulation made to safeguard the fashion Industry explicitly. The law of Intellectual Property Rights is the only law that protects fashion; a designer's creative work may be protected by the IPR. However, it might never be enough on its own, because different IPR that protect the fashion industry have different flaws and problems. In this paper the author will explain the need to protect the Indian fashion industry and also have a detailed discussion on different IP laws and their loopholes when it comes to protecting the fashion designs.

Keywords

Copyright; Fashion Industry; Fast fashion, Indian Designer’s; IP Rights; IP Infringement, Piracy; Plagiarism; Trademark


Introduction

The fashion industry is expanding at a rapid rate. There has been a ton of improvement in the design business. Many brands, designers and fashion brands have earned worldwide respect. The fashion industry has an immense financial effect in the nation's economic development. The improvement in the design business has made a ton of open positions and extraordinary income is gotten from commodities of style items. We live in the fashion world. In the present day and age individuals all over the planet have begun perceiving style and looking fashion has become a priority in this day and age of social media. The frenzy of holding an extravagance bag like Prada or possessing a couple of Christian Louboutin's heels has been created. Due to the influence of social media, luxury fashion has become increasingly popular. Every Indian bride wants to wear a lehenga by Manish Malhotra. All ladies want to have a Sabyasachi Banarasi saree wedding linen, however the issue is that such items probably won't be entirely reasonable or say affordable, as a result of which these designs are copied. Fashion designers have frequently voiced their displeasure with the fact that we are able to locate copies of all fashion brands, from first to third grade, in all price ranges.


The Problem of Design Plagiarism and Fast Fashion Business

Design plagiarism basically refers to creating a design by copying or imitating the work of another person, the terms "knock off," "counterfeit," and "piracy" are few synonyms used to describe design plagiarism. Producing goods with cheap quality fashion articles that are identical to those designed by fashion designers or any high-end fashion brand is known as counterfeiting.[1] Counterfeiting clearly constitutes an offense. where in the design as well as the brand name of a creator is likewise duplicated. A great example for this is Adidas sneakers, the Adidas sneakers that you could buy at the Adidas outlet for ₹12,000, Is available for merely ₹1200 in a local flea market. It is abundantly clear that counterfeiting is illegal, but it is unclear how and by whom this practice should be checked. These products are offered by thousands of vendors and keeping a check on them seems practically impossible.

In this day and age, we can see life is moving extremely quickly. There are metropolitan areas where people work around the clock and never slow down. Even the fashion industry must continue to move quickly because of the fast pace of life. Today, the most prevalent business model is the fast fashion industry. fast fashion fundamentally implies the development of an enormous number of profoundly trendy fashion articles, with the end goal of business[2]. Here, the fashion business units produce similar fashion items by drawing inspiration from high fashion haute couture. Within weeks, the haute couture designs are made available to the general public at much lower prices. Fast fashion labels such as Zara, H and M, forever 21, Mango and so on produce style articles in exceptionally less time, and simpler products inspired by a big celebrity couture designer are widely available even before the designers are aware that products based on their designs are being produced. Since the fashion trends change rapidly before the designers even realize about the design plagiarism the brands would have taken the designs off the market shelves. Hence it becomes very difficult to keep a check on such fast fashion labels.


Scope of Indian Fashion Industry

India's economy is one of the world's most rapidly expanding and developing. Over the course of time, there has been significant growth in the Indian textile market. In 2012, the fashion industry in India was worth 720 crosses. The statistics of the Associated Chamber of Commerce and Industry of India (ASSOCHAM) state that the fashion industry is expected to grow by 35 billion dollars by 2020.[3] The Indian textile industry is very big. After China India has the biggest material industry when it comes to textile. The Indian fashion industry employs a large number of people, not only in urban areas but also in rural India, and its export profits increased by 382 crores in the years 2018 and 2019.[4] The customary handcrafts are broadly sent out. In particular, Indian designer clothing will contribute 1.7% in 2020.[5] While this percentage may seem insignificant, the fact that the high fashion industry employs a large number of people is noteworthy. It is evident that the design industry is expanding rapidly, despite its small size. Even though the high fashion industry isn't very big, it's clear that it's not being handled right. Designers have often complained about fashion designs being copied or stolen. And since the industry generates so much it in a way becomes the responsibility of the state to protect the fashion industry.


Intellectual Property Rights Available to Indian Fashion Designers

There are Plenty of intellectual property rights established in India, since the advent of intellectual property law. But not all the intellectual property rights may help in protecting the fashion industry. Fashion being majorly connected to creativity there are certain specific intellectual property rights that protect this industry, they are:

·         Copyright

·         Design protection

·         Trademark


I. Copyright and Design Protection to the Indian Fashion Industry:

The copyright Act of 1957 protects copyright in India. In the context of the fashion Industry, copyright refers to a fashion designer's absolute right against illegal copying of their original designs. The items that would be protected by copyright are mentioned in Section 13.[6] The things where Copyright subsists are artistic, dramatic, music and literary works and it additionally incorporates sound records and cinematography films. The statue makes no specific reference to fashion design or anything else associated with designers or design. Every one of the things to be safeguarded are referenced in section 13 of the copyright act 1957. Copyright protection will extend to the design irrespective of whether the design is registered under the said act, the only requirement for copyright protection is that the design must be original. Making a fashion article is viewed as artistic workmanship under the purview of the Act.

Artistic work means anything that includes any painting, sculpture, a photograph, architecture, the craftsmanship of an architectural and also drawing.[7]  The copyright act may classify fashion designs as artistic works. Obviously, style articles being works of art, are qualified for copyright protection in India. The Act of 1957 grants fashion designers’ complete control over their designs and grants them absolute rights over fashion design. Without the fashion designer's prior consent, no one may duplicate their designs. The designer has unquestionably the option to sell the design by their choice. Plagiarism and modification of the design either in 2D or 3D structure will lead to infringement of copyright. Under Copyright, designers retain their rights for life and period of sixty years after the creator dies.[8]Any person who attempts to reproduce the design, imports or exports pirated fashion articles, or otherwise engages in trade of such fashion articles without first obtaining a license or permission from the fashion designer is considered to have violated the designer's copyright.[9]


Limitation on Industrial Production under Copyright

Fashion designs are protected by the Indian Copyright Act of 1957 as artistic works because the designers' creativity is considered an art form. However, this protection is not absolute; if a fashion design is registered under the industrial design protection act 2000, the copyright is lost. The production of a fashion design is constrained by section 15(2) of the Copyright Act of 1957. This section says that the copyright on a particular design is lost if 50 of the same fashion items are made. This section is imposed because the Design Act of 2000 requires a design to be registered if it is produced more than 50 times using an industry process. The Design Act of 2000 specifically protects designs created for industrial and commercial purposes. Copyright, on the other hand, is primarily concerned with safeguarding a design's creativity and artistic merit. In this regard, the Indian Copyright Act fails to provide fashion articles with complete protection. Section 15 has proven to be a barrier to fashion design protection in numerous instances.

When it comes to examining section 15 of the Copyright Act, one of the most significant cases is the Microfabrics v. Girdhar[10] case. The issue in this case was the textile's design; the plaintiff had accused the defendant of copying the textile's print designs. The main argument made by the defendant was that the plaintiff did not own any copyright to the design because it was used in more than 50 products. The plaintiffs' use of an industrial process to produce more than 50 designs was put forth in front of the court. The court expressed that as the design was applied in excess and 50 articles were made the design could be registered and safeguarded under the design act 2000 and not under the copyright act 1957. As a result, the plaintiff had forfeited its copyright to that particular design in accordance with section 15(2) of the Copyright Act.

The fashion industry is also protected by the Design Act 2000. If fashion designs are registered under the Design Act 2000, copyright restrictions on industrial production of fashion items could be lifted. However, Fashion designs are not automatically protected by the Design Act 2000, the act requires registration of the designs. As indicated by section 2(d)[11] Industrial design means ‘just' the elements of a design, which might incorporate pattern, shape, variety, ornamentation and setup of a specific article. The contention in this instance is that the definition of design merely safeguards components and characteristics of the design, such as colour, lines, and patterns and not a design article as a whole. The definition doesn't make reference to an entire piece of clothing or fashion article; however, this is not a major concern as design rules that work parallel with the act of 2000 extend the scope of design protection to fashion articles.  The design rules[12] that accompany the act 2000 provides classes of goods to which an industrial design could be applied. Class 2 of the design rules covers all clothing, footwear, and fashion accessories that are related to clothing. Class 5 covers textiles, which cover the design of any textile, from laces to embroidery. Class 10 products cover the design of wrist watches and any accessories related to clocks and watches. Class 3 covers travel accessories, which also includes wallets and bags. Class 11 covers jewellery. Essentially all that connected with style is covered under the design act.

The Designers Act protects fashion designs in full, no matter how many garments are produced using the same industrial process. Under the design Act of 2000, a design holder may be protected even if they produce more than 50 items with the same design. An action against fashion design piracy can be taken under this act if the design is registered under The Design Act 2000[13] The major concern under the said law is that the design holder is protected against Infringement only if the design is registered under the act, which prohibits fraudulent imitation, publication, sale, and export of the stolen design.[14] It's not easy to get registered under the Design Act. The following conditions must be met for a design to be registered:

·         The design must be completely original.

  • The design cannot have been previously made available to the general public.

  •  The design must be appealing to the eye.

  • Obscene language must not be included in the design.

The criteria or the conditions mentioned for registration of a design under the act of 2000 are very strict. The stringency of the registration criteria acts as a major barrier in protection of fashion design and limits the scope of the said act. Advertising and marketing are very essential components of a fashion business module. Many times, it so happens that the fashion designer launches their designs via live fashion shows before they have registered their designs and such display leads to loss of design protection. Not just display but documentation of a designs is also considered as publication of the design, say for example before the creation of a design in its 3D form, the designers usually make a 2D sketch of the design, now is sketch is a part inventory of a designer and is said to published once it’s put on paper as its a major part of the design process.  Hence if a designer has drafted a fashion design at his boutique, then another designer cannot ask for registration of the same design as it is previously published in the inventory of some other designer.[15] The registration request acts as a major barrier when it comes to design protection of a fashion article.


2. Trademark Protection to the Indian Fashion Industry

The Trademark Act 1999 provides fashion Labels with trademark protection. The act defines trademarks as marks that can distinguish one brand's products from those of another. A Trademark might be a word, symbol, colour combination, a name or design.[16]Trademark is the label or logo used to address the design, it's the name given to a fashion brand which assists the buyers with distinguishing the articles of specific creators or a brand from that of another. The trademark basically aids the designer in establishing themselves as a brand and demonstrating their market presence by the mark. Although the trademark Act of 1999 provides a comprehensive definition of the term, it is true that intellectual property owners do not have the ultimate level of protection.

All major brands have trademarks, such as the tiger symbol above the word "Sabyasachi" referring to the brand Sabyasachi, the horse and chariot symbol referring to the brand Hermes, and the letter "GG" referring to Gucci. All major brands have their own distinctive logos to maintain the distinctive premium prestige value of the brand. When it comes to the fashion industry, fashion items are prized and advertised based on the value of the brand. A brand name is a status symbol. The brand's equity is safeguarded by the trademark. For big brands, building brand equity is most important.[17] 

Trademark protection also includes trade dress. Trade dress includes shape, size and colour combination used in packaging a product. Trade dress protection is provided by the Trademark Act; However, the court is responsible for determining the scope of such protection. In the case of Christian Louboutin v. Abu Baker[18]The plaintiff, a luxury fashion brand, alleged that the defendant, Abu Baker, a local Mumbai retailer, had copied its trade dress. The defendant was also alleged to have manufactured and sold red sole shoes, which are a well-known trademark of Christian Louboutin. The defense offered by the defendant was that a single color will not constitute a trademark and that the plaintiff cannot claim infringement of trademark. The defendant's arguments were upheld by the Delhi High Court, which decided that the Trademark Act of 1999 does not permit protection for a single colour. This case demonstrates that trademark protection enforcement is clearly lacking. Even though Christian Louboutin is a well-known brand, and in particular Louboutin is best known for its red-soled shoes. It wasn't given sufficient security by the Delhi high court.


Conclusion

The Indian fashion industry enjoys numerous intellectual property protections. However, there are a number of issues with its enforcement, and there are very few precedents that are exclusive to Indian fashion or involving Indian fashion. This is because there are not many lawsuits when it comes to the fashion industry. This shows that the Indian fashion designers don't give a lot of significance to register and protect their innovation, or even battle for Safeguarding their creative work. This could likewise be on the grounds that style relies upon seasons and changes with seasons. The trends change so quickly that small designers might not want to spend money protecting their intellectual property. Additionally, each intellectual property right has its own flaws that must be rectified through amendment, even if the designers wish to exercise their rights under the law they are not provided with unconditional protection, under Indian IP laws. If the bar under area 15(2) could be taken out the copyright could be the best protected innovation right to the design business. because it completely safeguards the design article even when the designs have not been registered. In addition to this, strict design registration rules must be made more relaxed and flexible as these stringent regulations might not be very easy to understand or adhere to for designers. Indian courts need to be more open-minded when deciding fashion-related cases because trademark laws only protect the brand name, logo, and not the design by themselves. The ultimate goal of the legislative and Indian judiciary must be to safeguard the rights of designers and their creativity, just like in other fashion-forward nations. Since India is a rapidly developing nation, it is high time that it enacts superior and exclusive laws to safeguard the domestic fashion industry.


[1] Rahul Bajaj, ‘Countering the Menace of Counterfeits’ (Spicy IP, 8 August 2016) ,https://spicyip.com/2016/08 /countering-the-menace-of-counterfeits.html accessed 21 July 2022.

[2] Alexandra Manfredi,‘Haute Copyright: Tailoring Copyright Protection to High-Profile Fashion Designs’

(2018) 21 CARDOZO J. INT'l & COMP. L111, 118.

[3] The Indian Express.Com, https://indianexpress.com /article/technology/sponsored/the-rise-of- online-shopping-for-luxury-brands-in-india  accessed 28 July 2021.

[4] Ministry of textile and Industry annual report (2019-2020), para 3.12-3.13.

[5] Shishir Tiwari, ‘Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View.’

(2014) SSRN Election Journal< https://dx.doi.org/10.213 9/ssrn.2805346> accessed 21 July 2022.

[6] Copyright Act 1957.

[7] Copyright Act 1957, s 2(c).

[8] The Copyright Act 1957, s 22.

[9] The Copyright Act 1957, s 51.

[10] Microfibers v Girdhar (2006) 32 PTC 157.

[11] The Design Act 2000.

[12] The Design Rules 2001.

[13] The Design Rules 2001.

[14] The Design Act 2000, s 22.

[15] B. L Wadehra, Law relating to intellectual property (5th edn, Lexis Nexis 2019) 415.

[16] The Trademark Act 1999, s 2.

[17] Chakshu Singh, ‘Role of Intellectual Property Rights in Fashion Industry’ (2020) 2 LEXFORTI legal journal

https://lexforti.com/legal-news/wp-content/uploads/2 021/02/Chakshu-IP-in-Fashion-Industry.pdf) accessed 21 July, 2022.

[18] Christian Louboutin v. Abu Baker (2018) CS (comm) no.890/2018.


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