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COPYCAT CULTURE IN THE FASHION INDUSTRY AND IP PROTECTION.

“In Order to be irreplaceable one must always be different”

~ By Coco Chanel


INTRODUCTION


The fashion industry is an ever-evolving and dynamic sector possessing intellectual and artistic creativity for the creation of clothing and other lifestyle accessories. Intellectual property law plays an important role in protecting one’s expression of fashion creativity and the marketing of the product. The fashion industry is an IP-intensive industry as it requires the application of the mind for creating something new and original while constantly focusing on bringing innovation into the world. The Intellectual Property Law safeguards the fashion industry through Trademark, Copyright, Design, and Patent. The brand’s intellectual property strengthen their authenticity, reputation, and business position in the market full of competition. When a brand puts an enormous amount of energy, intellect, and creativity they must get their products legally protected under the IP laws.


The challenge that is being faced by the IP laws is protecting the large number of designs that are constantly changing based on the season, new fashion style, or demand of consumers. Copycat fashion has now become a trend for the companies that results in a huge loss for the truthful owner and maker of the product. Making counterfeit Products and selling them at lower prices has become a regular practice in practice. Don’t we see it in every market? Have we ever thought about the original product maker? Now is the time to think and protect the rights of the original maker and encourage them to create more innovation in the fashion industry. The fashion industry is rapidly growing and its intellectual property is their greatest value which needs to be protected from piracy otherwise it will hamper the innovation and growth in the industry.


PROTECTING FASHION WITH DIFFERENT IP LAWS


The fashion industry involves protection from various Intellectual Property Laws that include Trademark, Copyright, Design, Patent, and Geographical Indication. The fashion industry will never fade as people will continue to buy clothes, accessories, footwear, lifestyle, perfumes, makeup, and many others. A designer can have legal rights in two ways, one is protection where they can stop anyone from using and copying their designs without their permission and the other is exploitation where they can enter into a licensing agreement with a party for using their design in return for earning revenue. Let us discuss the protection given to products by the various IP Laws.

v TRADEMARK


Trademark is a sign or a mark including a word, symbol, design, number, or a combination of the same that is associated with a particular product or service and is used to distinguishing that product from other similar products. It helps in distinguishing between the original and counterfeit product subsequently helps in protecting the brand’s revenue. A trademark should be original and unique in order to gain trademark protection. A brand can get a trademark for its name, slogan, and symbol. The best example is Nike it has a trademark for its logo i.e. a tick mark, its name, and a slogan ‘Just do it. The selection of a name is an important factor in the fashion industry as it will remain with them for years for example Hermes Birkin Bag is known and identified with its name as creating a unique name that adds value to the design.


Some of the famous trademarks around the world are Burberry that hold a trademark for its name and their distinctive plaid, Louis Vuttion that hold a trademark for their logo and they use their logo as a part of the design and Pickwick hold a trademark for their logo depicting a young faceless boy with spiked hairstyle and uses its logo on their products and today people are willing to pay extra for the clothes bearings its trademark.[1] In India, one’s trademark and rights can be protected by the Trademark Act, 1999. Fashion Designs that are registered under the Design Act, 2000 will not only be protected under this act but also get protection from the trademark act. [2] In the case of Louis Vuitton Malletier v AtulJaggi[3], where the defendants have been using the trademark of the plaintiff ‘Louis Vuitton’ and ‘LV’ in their products and hence infringing the trademark of the plaintiff. The Delhi Court held that the defendant is liable for infringing the Plaintiff’s trademark and the damages should be paid to the plaintiff also said that the trademark owner can not only protect their name and logo but also their distinctive features of the product can be protected for instance BittinaLiano has registered its distinctive feature of pocket stitching in clothes as a trademark.


COPYRIGHT


Copyright protects the artistic expression and original work of art, Fashion is an art in which the artist has used his creativity for designing clothes, jewelry, footwear, and other lifestyle accessories. The protection from infringement granted by the copyright law encourages the artists to create innovative products by using their skills and creativity. The design work by a designer can be protected as artistic work that includes graphic work such as painting[4]. Copyright protects the artistic expression of the artist, the products “that are capable of being identified separately from and are capable of existing independently, of the utilitarian aspect of the article” it is commonly known as separability rule. In the case of Mazer v Stein[5], the Supreme Court held that Balinese Statuettes that were the bases of lamps were copyrightable as it involves the artistic work and it was capable of separable from the lamp. These Statuettes were to be used as the bases of the lamp but they have their own artistic work involved and can be protected.


The Copyright Act and the Design Act overlap each other, if a design has not been registered under the design act in India it will bet the protection under section 15(2) of the Copyright Act, 1957. As soon as the article is reproduced more than 50 times by the copyright owner or by any person with the license from the owner, copyright in the design shall cease to exist[6]. To get the register under the Copyright Act, the creator has to prove that his original artistic work falls under the copyright act and not the design act. In the case of Rajesh Masrni v Tahilani Design Private Limited[7], this case plaintiff alleged that the drawings made by him in course of making the garments and accessories are an artistic work under section 2(i)(c) of the Copyright Act, 1957. The first step is to determine whether the design that is made is to be considered as artistic work under the copyright act or a design under the design act. Plaintiff alleged that his artistic work has been infringed, hence the court held that it is an infringement of his artistic work and issued an injunction against the defendant. Similarly, RohitBal became the first designer to register his entire collection under Copyright Act, 1957[8]. After this many designers like Anita Dogre, AnujModi, Ritu Kumar got the copyright for their entire collection.


DESIGN


Designs are an integral part of the fashion industry and are unique to one’s brand. Registering a design help the owner to prevent others from exploiting the same design. A design can be a shape, color, pattern of the product it can be a two or three-dimensional shape. It does not protect the whole product but it protects the part of the product. The fashion industry involves a huge amount of money in every season on making the new designs of the product. Some of the examples are the classic ‘Kelly’ Bag from Hermes and the classic Chanel Suit. In India the Designs are protected under The Design Act, 2000 and the objective behind the act is to protect the design from piracy as the design is unique to a brand and is the key to visualize the product.


Design Act is one of the major IP tools in the fashion industry which helps in protecting the shape, pattern, composition of lines or shapes with two or three-dimensional designs or both used as a purse, garments accessories, etc.[9] The eligibility for registering a design under the Design Act, 2000 should be new without any prior publication and the design should reflect the novelty of the artistic expression that is to be registered. The act only protects the design that is registered under the act and not unregistered design, in order to gain the benefits of the act one should register its design.


CONCLUSION


The Fashion Industry has been evolving for years and is protected under various Intellectual Property Laws. The Design Act does not particularly define the word ‘fashion design’ and hence it is upon the judges to interpret. There is a need for the definition of the word ‘Fashion design’ under the Design act that will subsequently help in the growth of the Fashion Industry and will encourage the creativity and innovation of the designer. It is not possible for us to stop the counterfeiting of the product but the owner should be aware of his IP rights and should definitely register his products under the IP laws and get the protection granted by the laws. It is important for the creators and the copycats to understand the repercussion of copying the work and should consider that how much amount of energy, work, and investments have been made by the owner of the original product.


[1]Gianna Cresto, A Design of its Own: How to Protect the Fashion Industry, American Intellectual Property Law Association Quarterly Journal (2020)

[2]Micolube India Ltd. vs. Rakesh Kumar trading as Saurabh Industries &ors, 199 (2013) DLT 740

[3]CS(OS) 1419/2009

[4]IP and Business: Intellectual Property in the Fashion Industry, World Intellectual Property Organization (2005)

[5]347 U.S. 201 (1954)

[6] Sec. 15(2) The Copyright Act, 1957

[7]2008 PTC (38) 251 DEL (6)

[8]Ritika Private Limited v. Biba Apparels Private Limited, (2016) 230 DLT 109

[9]The Design Act, 2000.


Navin Kumar Jaggi

Bhavya Bhasin


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