Introduction–
Intellectual property (IP) encompasses intangible creations of human intellect[1], and intellectual property rights serve as a set of regulations safeguarding these creations, including copyright, patent, trademark, trade dress, and trade secrets. The significance of protecting intellectual property in the fashion industry is growing, given its vast scope in designing, manufacturing, and selling various items. Registering IP is crucial to prevent the unauthorized replication of fashion trends amid the global emergence of diverse styles. Amidst a market flooded with counterfeit products, IP registration provides recognition to designers and manufacturers, acting as a deterrent against duplication or imitation. While producing similar products with different labels is not inherently unlawful, legal action can be taken if the resemblance is deemed deceptive. Notably, major fashion brands invest significant sums in lawsuits against counterfeiters to protect their unique designs. Original work protection is essential as new market entries often lead to imitations rather than the creation of original products. Intellectual property rights play a pivotal role in enhancing a brand’s reputation, fostering reliability and authenticity in the eyes of customers within this competitive market.
Fashion And Copyright-
Copyright, defined as the legal entitlement to reproduce something, is governed by The Copyright Act, 1957. It ensures that the original creators and those authorized by them hold exclusive rights to replicate their creations. Copyright protects all forms of creative, artistic, musical, and literary works, including artistic designs on textiles, fabrics, apparel, and garments[2]. According to Section 2(c) of the Copyright Act of 1957, artistic design work, encompassing paintings, sculptures, sketches, or any unique artistic creation, is safeguarded[3]. However, the functional aspect of a design is not covered by copyright; instead, The Design Act, 2000 safeguards the aesthetic and design elements like shapes, patterns, and colours for 15 years, with registered designs automatically gaining copyright protection. The Copyright Act grants a ten-year protection period for designs from the date of registration, and copyright lasts for the author’s lifetime plus 60 years from their death. Notably, only artistic designs or architectural works fall under copyright protection, leaving items like clothing and footwear excluded. Copyright plays a crucial role in the fashion industry, safeguarding the creativity of artists, such as fashion illustrators. For instance, a fashion illustrator’s work can be protected from unauthorized replication through copyright, ensuring exclusive usage by the creator or those permitted to use the design. Section 15(2) of the Copyright Act specifies that no copyright can subsist in drawings and sketches under the Indian Copyright Act once they exceed 50 reproductions.[4] A legal precedent in the case of Unicolor, Inc. v. Urban Outfitters[5], Inc highlighted that the print pattern of a woman’s dress can be copyrighted, and infringement may lead to legal action.
Fashion And Trademark-
A trademark, as defined by the Trademark Act, 1999, is a distinctive sign that sets apart the goods or services of one company from those of others[6]. It plays a vital role in averting confusion among consumers about brand elements like names, symbols, and quotes. Trademarks, exemplified by recognizable symbols such as Nike’s tick mark, Adidas’s three stripes, Christian Louboutin’s red soles, and Bettina Liano’s pocket stitching, provide exclusive recognition to brands. Major players like Zara, H&M, Michael Kors, and Louis Vuitton use trademarks unique to them, enhancing their visibility in a competitive market. Registering a trademark is essential to shield brands from imitation, ensuring they don’t bear an identical mark that could mislead customers.
The term “trade dress,” a subset of trademark law, encompasses a product’s overall design, including exterior and interior features, packaging, size, texture, colour combinations, and arrangement. It also extends to the distinctive colour and sound of items, like the specific style and colour of an Adidas shoe. Designers often opt for trademark protection over designs and patents due to its cost-effectiveness and efficiency. To register a trademark, designers can complete the e-trademark application on the Intellectual Property India website under the Trademark Act, securing protection for their products.[7]
Fashion And Patent-
A patent, granted under the Patent Act, 1970, and the Patent Rules, 2003, is an exclusive right for an invention – be it a product or a process that introduces a new method or provides a technical solution to a problem[8]. Governed by patent law, it serves as a property right, allowing the holder exclusive benefits from the invention for a limited period. This exclusivity prevents others from selling, manufacturing, or utilizing the innovation. There are three primary types of patents: utility patents, plant patents, and design patents, offering protection for 20, 14, and 20 years, respectively, from the filing date. Once this period concludes, the invention enters the public domain. While the fashion sector infrequently uses patent law, mainly because artistic creations can’t be patented, it is more prevalent in the technological and industrial sectors. In fashion, patents are typically granted for technical and industrial innovations, such as wrinkle-free fabrics or water-repelling textiles. Unlike design patents, patents for new creations like a pair of shoes are not feasible. Obtaining a patent involves disclosing technical information about the invention in a patent application[9].
Notably, patent registration is a costly and time-consuming process, exemplified by cases like NIKE, Inc. v. SKECHERS USA[10], a widely-known instance of patent violation. Nike Inc. sued Skechers USA for using footwear cushioning originally invented by Nike, highlighting the frequency of patent infringement lawsuits in the fashion industry.
Conclusion-
The global fashion industry is experiencing remarkable growth, continually evolving with the creation of new styles and designs. Intellectual property plays a pivotal role in safeguarding these developments, making the use of copyright, patent, trademark, and other protections essential. Effectively securing innovations makes it challenging for copied products to proliferate, rendering infringement of intellectual property rights virtually impossible. In the symbiotic relationship between fashion and intellectual property, both are indispensable for each other’s advancement. Intellectual property laws provide crucial protection against the threats of imitation and plagiarism in the creative realm, not only for fashion but also for any industry driven by innovation. However, the existing provisions of intellectual property rights fall short in adequately shielding the designs and styles originating from the fashion industry. Instances of designers imitating others persist, revealing numerous loopholes in intellectual property protection for fashion.
To eradicate this practice, stringent intellectual property provisions are imperative, coupled with heightened awareness of intellectual property rights. Enhancing India’s intellectual property rights system to better guard against theft and fraud in fashion design requires specific changes:
1. Simplifying and standardizing the registration of designs under the Design Act, 2000, which is currently a complex process.
2. Fashion designers must acquire a comprehensive understanding of intellectual property protection laws to determine the most suitable type for their products.
3. Addressing existing loopholes in intellectual property rights to sensitize individual rights and foster prosperity through intellectual property. Adopting these recommendations could bring about a significant transformation in intellectual property rights provisions, making the use of intellectual property more streamlined, potent, and effective in curbing duplicity and piracy of fashion designs. This, in turn, would incentivize fashion designers to create a plethora of new designs, propelling the fashion industry towards prominent development and growth.
[1] World Intellectual Property Organization (WIPO) (2016). Understanding Industrial Property.
[2] The Copyright (Amendment) Act, 1992, No. 14, Acts of Parliament, 1992 (India).
[3] Section 2(c) of the Copyright Act of 1957.
[4] Section 15(2) of the Copyright Act of 1957.
[5] Unicolors, Inc. v. Urban Outfitters, Inc., April 3, 2017, Orrick, H.
[6] Trademarks, https://www.wipo.int/trademarks/en/.
[7] Trademark Registry, Intellectual Property India, https://ipindiaonline.gov.in.
[8] Patents, wipe.in, https://www.wipo.int/patents/en/#basics.
[9] Patents, wipe.in, https://www.wipo.int/patents/en/#basics.
[10] 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).
Done By: Reshma A, 5th year B.Com., LL.B(Hons.)
SRM University, Kattangulathur
For Origin Law Labs
