This Article is written by Archana Upadhyay pursuing B.A-LL.B from Galgotias University
The tradition of “being specific”, which was originated thousands of years ago in different states all across India, which was well known to be “A Trend” or “Fashion”. One can now even notice how the fashion industry is growing day by day. As a result of which now India is the 2nd largest producer of textiles and garments in the world. But the concern which arises, for now, is whether the Fashion Industry is protected under any code of law? Can Fashion Designers be protected under the legal system? And the answer to both of both the question is yes the fashion industries have the right to be protected under the law commonly known as Intellectual Property Rights. But now the question which emerges in one?s mind is what does the Intellectual property rights mean? In a layman language, one can define Intellectual Property Rights as the Rights which are being given to the person or the group of people for protecting their ideas, intellect, work, etc. Whereas the WTO defines it as “Intellectual Property Rights are the rights given to persons over the creations of their minds. This right usually gives the creator an exclusive right over the use of his/her creation for a certain period of time”.
This article mainly focuses on how the fashion designing is related to Intellectual Property Rights and how many laws can be applied to the fashion industry.
The most enhanced area of today’s world is the fashion industry and it seeks protection under the Intellectual property rights against the infringement. In India, different areas of Intellectual property rights are being applied such as The Copyright Act 1957, The Trademark Act 1999, The Indian Patent Act, 1970 and The Design Act 2000, The Design Rules, 2001 which will also be discussed in detail in this article.
Background of the Fashion Law
Fashion law was originated by Susan Scafidi, a United States Law Professor, in 2008. It was introduced as a totally different topic related to law but was, later on, adopted as a subject in different European and American schools. But the trend of fashion was concerned first in the 17th Century in France where the cheapest fabrics were used. Thereafter the trend of copying the Fashion Artist began and that arose an issue. As a result of which the French and English legal systems extended its area into copyright laws. The Indian laws started to protect the right of the fashion artists under the Intellectual Property Rights which has helped in taking care of the rights of the person in the fashion industry.
Fashion Design and Intellectual Property Right
For the fashion designers, their designs are the soul that is expensive and hard to produce as same as of their ideas but it is very easy to copy the same. So, for protecting their ideas the law included it within the ambit of Intellectual Property Rights. As a result of which designers are now more motivated for producing the new work with a high sense of protection rather than copying it of others. Intellectual Property Rights give protection under the various Acts which are discussed in further sub-points through which one can have the right of protection and along with it the right against exploitation. The right to use can be availed only if the registration has been done.
Fashion Designing and Copyright
According to the Design Act, the right over the registered design has a term of ten years from the date of registration and to extend the same an application can be filed which may further extend the period for 5 years. The Design Act protects the registered design from piracy in registered design. ?Piracy of registered design? defines under section 22(1) of Design Act, 2000 as “if any person commits piracy then he is liable to pay the sum not exceeding twenty-five thousands rupees to the proprietor of Design.” In another case, if the proprietor brings the suit for the recovery of such an act then the total sum must not be exceeded fifty thousand rupees. For this, Copyright protection is a must in the design industry to protect their creative and innovative work or idea. The term “artistic work” under the Copyright Act, 1957 is much stronger than the ‘Design’ registered under the Design Act, 2000. Fashion Designers tend to use more protection of Copyright in their works. It is well evident in the case of Rajesh Masrani v. Tahiliani Design Pvt. Ltd it was argued that “Artistic work” in copyright is distinct from the ‘design’ in Design Act but in view of the Court after collecting evidence and further comparison of the works of both the parties, the Court concluded that Defendant committed an infringement of the copyright of Plaintiff and it was an open case of piracy of copyrights.
Fashion Designing and Trademark
Trademark is used for the customers/consumers so that they can identify the goods and services of the respective brand. It has a strong marketing value and helps in the growth of a brand entity. All these entities are concerned with the protection of their marks through their registration. These are mainly found in different patterns in different types of industries and entities. For example – NIKE (a brand logo) along with a Tag line (Just Do It). Hence, it helps its customers in identifying the brand with a distinct pattern and design. Mostly it is found in the fashion and lifestyle industry where every entity tries to get the most distinctive design for their logo which results in less duplication of the design.
However, it is difficult to get the trademark protection for the non-traditional marks such as protection obtained for patterns and shapes. In this field, the basic requirement of substantial evidence that a certain shape has gained distinctiveness by the extensive use of the mark by the owner and the same has to be submitted to the Trademark Registry. Although the procedure of the registration of the trademark is different for different countries, majorly it can be observed that most of the countries are using the First-to-File system, where the first individual who gets it registered will be the rightful owner so that no other person can register the mark as theirs (in a bad faith). Further, many countries have a provision with regard to the cancellation of the trademark obtained fraudulently. But the cancellation process is expensive and time-consuming and also requires a piece of substantial evidence regarding the same.
In countries like Malaysia and Singapore, an individual can enforce his right even though the trademark is not registered. An action can be instituted through the passing of. But the three essentials need to be fulfilled to institute an action for passing off:-
1. Goodwill of your mark
2. Misrepresentation by the other person by using your mark as their and,
3. Damage to your business
A trademark can be applicable in the case of fashion design only when it is visible that it is closely related to design to such degree that it somewhere construes an element of design. There has been seen an impressive awareness and growth of trademarks in the fashion industry to use a trademark logo on the outer surface of the garment when particular clothing is being created. And this how a logo forms a part of the design and hence trademarks save the design copying.
Fashion Designing and Industrial Design
The Industrial design has been classified as the unique symbol of shape or size which represents the product or an article. Where the symbols can be classified and distinguished by the public at large. For the protection of that design, it must be registered as the Intellectual Property Right and where registration of the design helps the owner to protect it from all others by exploiting its new or original ornamental or inventive aspects. Further, as per the Design Act 2000, one of the classifications of intellectual property rights is the Industrial Design. So, the protection can only be given to the designs which are registered and follow the following conditions:
1. It should be novel and original.
2. It should be applicable to a functional article.
3. It should be visible in a finished article.
4. It should be non-obvious.
5. There should be no prior publication or disclosure of the design.
One should keep a note that the registration of the design should be done before launching it in the market. The registration is given only for the period of 10 years with the exclusive right to sell and import the article or to file an action against the infringer and further, it can be renewed for a period of 5 years. But the protection under this registration is given only for the design, and not for the material. Henceforth, the maximum validity of the registration is the period of 15 years in India.
The aim of Intellectual Property Rights is giving an entitlement for social recognition to the person as the Fashion Industry is an emerging industry in today?s world. One must have knowledge in what aspect the fashion designers or the artist can avail of their rights under the law. The Fashion industry has the aspect of Change, yet continuity? as a result of which many people started copying the work of the other so people are supposed to understand that for maintaining the uniqueness one must have the knowledge of Intellectual Property Rights. However, fashion design has not been fit under a particular law properly consequently there is uncertainty. So, there is a need for much more improvement for the protection of the rights of the fashion designers.
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5. Wipo.int. (2020). Types of intellectual property.
6. Panidou, S. (n.d.). THE PROTECTION OF FASHION DESIGN UNDER INTELLECTUAL PROPERTY LAW.
7. Rajesh Masrani v. Tahiliani Design Pvt. Ltd AIR 2009 Delhi 44.
IMAGE CREDITS– www.smallbusiness.jdsupra.com/