Fashion Design’ sounds so fancy ; I can only think of the flowy dress, the dripping silk, the Swarovski beads  and the list goes on………….. But I wonder how much copyright protection is given to their delicate – exquisite work?

PROLEGOMENA

India has a rich and varied textile heritage where each state has its own distinctive native costume and traditional attire and accessories. In this globalised span, the apparel and accessories section in India is intensifying itself at a rapid pace with international developments. Fashion Industry in India is growing day by day and it has experienced remarkable growth in the last decade mainly driven by growth of domestic designers, some of whom have gained international recognition in recent years.[1]

On one hand; the Indian fashion industry is thriving and on the other hand; it is besieged by the imperiled of piracy in fashion design.[2]

The industry people, particularly the fashion designers, have been complaining about their creativity being imitated and copied. Fashion Industry has long being known for its omnipresent nature of imitating and copying original fashion designs. Besides that, due to ample of advanced software technology, the practices of copying has become like a click button.

Fashion Industry, being considered as the creation on ones original creativity and intellectual product, has become an epic concern and demand apropos the intellectual property rights protection of fashion design.  Therefore, I will make a modest attempt to explain fashion design piracy and analyst the IPRs regime protecting fashion design in two parts. In part one, piracy and IP in copyright will be discussed and part two, IP in trademark and design.

FASHION DESIGN PIRACY  

Piracy is “the unauthorized and illegal reproduction or distribution of materials protected by copyright, patent, or trademark”[3]In other words, unauthorized copying is the essence of piracy. [4] In the context of fashion industry, it falls in to two following categories: 1) Knock off and 2) counterfeits.

Knockoff:  A knockoff is a close copy of the original fashion design, mimicking its elements, but is sold under a label different from the label of the original design. Thus, it is not sold in an attempt to pass as the original.[5] In other words, it replicates the original design nearly line to line but with another designers name attached.[6]  It is produced illegally without a license.[7]

In contrast to knockoff, a counterfeit is the imitation of the original fashion design as well as the brand logo or label of that design. The intension here is to deceive the buyers of the apparel’s true content and origin both.[8] A counterfeit product is sold to pass the original design. However, all the counterfeit doesn’t have to include both, some cases only fashion logos are copied.

COPYRIGHT: TO BE OR NOT TO BE

Garments and Apparel under the fashion design has transgressed boundaries from a mere garment to a work of art, more aesthetic than utilitarian in nature. The creative or artistic component is what differentiates the past from the current in fashion. Hence, Copyright law and the incentives afforded to artistic work serves as a ray of hope to the fashion designers to protect their artistic work in their apparel design. Copyright law is another legal protection under the intellectual property. In India, the Indian Copyright Act, 1957 lays down the laws relating to copyrights. From the point of protection of design in general and fashion design in particular, section 15 of the copy right act is relevant. Section 15 clearly shows that copyright act and design act overlap each other on the issue of design protection. Section 15 lays down the basic framework for design and copyright protection:

1) Designs capable of being registered under the Designs Act, 200066 and registered as per the provisions of the Act get protection under the Designs Act only.

2) Designs capable of being registered under the Designs Act, 2000 but not so registered get protection under the Copyright Act, 1957.

3) Designs not capable of being registered under the Designs Act, 2000, as they are original artistic works, get protection under the Copyright Act. 1957.

The above 2) states that designs capable of being registered as a design under the design act 2000 but not so registered to be protected under the copyright act 1957, if 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. The copyright owner gets a lifetime term plus sixty years, when published during the lifetime of the author. [9]

It is evident from the above discussion, that a fashion design is better protected as an “artistic work” under the Copyright Act, 1957 than as a “design” under the Designs Act, 2000. This is the reason that fashion designers in India always tend to term their creative works i.e. fashion designs as ‘artistic works’. However, courts in India have developed jurisprudence, through a series of their judgments, to determine when a design is an “artistic work” and when it is a “design” in the sense of Designs Act, 2000. Tahiliani case[10] was the first and foremost step in forming that jurisprudence. However, Microfibres[11] case gave in a more detail and lucid manner.

This copyright protection is limited as it enables the designers to protect only their couture lines wherein only to limited pieces. It is also not worthwhile for large number of fashion designers especially those focusing on mass production garments

[1]  Grail Research (2009), The Global Fashion Industry – Growth in Emerging Markets (Research Report), 1-22, available at, http://www.grailresearch.com/pdf/ContenPodsPdf/Global_Fashion_Industry_Growth_in_Emergi%20ng_Markets.pdf. p 16.

[2] “Cloak-and-dagger capers”, available at http://indiatoday.intoday.in/story/fashion-piracy-design-spies-copy-outfits-for-entrepreneurs-toolazy-to-create-their-own/1/301643.html

[3]  Black’s Law Dictionary (Ninth Edition, 2009), p. 1266

[4]  Intellectual property rights protection of fashion design in india, available at file:///C:/Users/sony/Downloads/SSRN-id2805346.pdf

[5]Ibid

[6] Sara R. Ellis (2010), “Copyrighting Couture: An Examination of Fashion Design Protection And Why The DPPA And IDPPPA Are A Step Towards The Solution To Counterfeit Chic”, Tennessee Law Review, 78: 163-211, p. 168.

[7] Webster’s 1913 Dictionary, available at, http://www.webster-dictionary.org/definition/knockoff.

[8] 8 Biana Borukhovich (2008-09), “Fashion Design: The Work of Art that is Still Unrecognized in the United States”, Wake Forest Intellectual Property Law Journal, 9(2): 155-176, p. 156. See also Sara R. Ellis (2010), note 10, p. 167

[9] See, Section 22 of the copyright Act, 1957.

[10] Rajesh Masrani Vs. Tahiliani Design Pvt. Ltd, Appeal No.: FAO (OS) No.393/2008

[11] Microfibres Inc. Vs. Girdhar & Co. & Anr.7, Appeal No.: RFA (OS) NO.25/2006

 

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