As discussed in my earlier article (part 1) that 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]Due to one’s original creativity and one’s intellectual innovation, IPR protection for fashion industry has become a necessity.
Apart from copyright protection, trademark and industrial design also protect fashion design.
INDUSTRIAL DESIGN PROTECTION FOR FASHION DESIGN:
Industrial designs protection is the most widely used legal protection mode for fashion design. In India, the law relating to the protection of industrial designs has been laid down in the Designs Act, 2000. This is the primary law employed by fashion designers to protect their fashion designs.[2] Section 2 (d) of the Design Act 2000 defines the term ‘design’, which means that not every design can be registered but only those design that is within the ambit of sec 2 (d). Apart from fulfilling the definition in sec 2 (d), the following conditions should also be fulfilled to be registered as a design.
1) It must be new or original.
2) It must not have been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the date of filing for registration.
3) It must be significantly distinguishable from known designs or combination of known designs.
4) It must not comprise or contain scandalous or obscene matter
The Act does not protect the entire garment as a whole; rather, it only protects the particular/individual aspects like shape, pattern, color etc. of the garment
As per the provisions of the Designs Act 2000, copyright in the registered design subsists for a period of ten years from the date of registration and may be extended for a second period of five years.
This provision lays down the laws to check piracy of registered design; however, it has limited the fashion designers to utilize it to the fullest. The limitations are:
NO PROTECTION TO UNREGISTERED DESIGNS
The Designs Act only protects registered designs not the unregistered designs. Considering the nature of fashion industry where fashion design houses come up with a fresh garment line usually every season, fashion designers need automatic and immediate protection. However, due to the absence of the concept of unregistered design protection, the Design Act becomes helpless.
TIME CONSUMING REGISTRATION PROCESS
T he process for registration is complex and time consuming hence not favorable to the needs of dynamic fashion design industry. The whole process of design registration in India takes about 10 to 12 months. And that is problematic because the projected life of a piece of garment in a designer store lasts for a maximum period of three to four months every season.[3]
INADEQUACY OF DAMAGES
The provision of design act incorporates recovery of damages from any person involved in the act of piracy. However, the recovery should not exceed fifty thousand rupees. This begs my question is it sufficient for a fashion designer? It is a mockery of the grandeur associated with couture creations which are worth lakhs of rupees.[4]
TRADEMARK PROTECTION FOR FASHION DESIGN
Trademarks help to maintain a prestige premium for particular brands and can be quite valuable to apparel and accessory firms[5]. The utility of trademark law, however, in protecting fashion designs, as distinct from fashion brands, is quite limited. [6]
A trademark is valuable for a fashion design only in that circumstances when it is visibly integrated into a design that later becomes an element of that design. There is a growing tendency among fashion designers to incorporate a trademarked logo on the outer appearance of the garment during the creation of clothing and accessory designs.[7] And in these circumstances, the logo becomes part of the design, and thus trademark provides significant protection against design copying.
THOUGHTS
Fashion design occupies a unique position in the world of creative endeavors, putting a premium on innovative ideas and creative expression. IP was designed to incentivize such creativity by granting creators protection from unfair competition and piracy. However, due to the ubiquitous piracy of fashion design, it has become a problematic to the fashion Industry. The current intellectual property regime in India as seen above is not efficient enough to protect Indian fashion design industry. First and foremost, a separate definition of “fashion design” should be included in the design Act 2000, facilitating the entire appearance as against the present definition U/S 2(d) of the Act. Also a provision for the protection of unregistered design should be included in the Act. All such suggestion will boost the current IP regime to effectively deal with the menace of fashion design piracy. Consequently, this protection will spur greater creativity and save creative industries from extinction.
[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.
[3] Poojan Sahny (2012), “The Designs Act, 2000: A Fashion Faux Pas”, 1-12, available at, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185519
[4] Intellectual property rights protection of fashion design in India, available at, file:///C:/Users/sony/Downloads/SSRN-id2805346.pdf
[5] Tiwari, Shishir, Intellectual Property Rights Protection of Fashion Design in India: A Panoramic View
[6] Kal Raustiala and Christopher Springman (2006), “The Piracy Paradox: Innovation and Intellectual Property in fashion design”, Virginia law Review,p 1701.
[7] Ibid, note 5.
