Versace’s medusa motif, the Vera Wang wedding dress, Louis Vuitton handbag – all these are products of applied intellectual creativity and skill in the fashion industry. No one doubts the tremendous value of intellectual capital to the creation and marketing of products in the fashion industry, be it high fashion or ready-to-wear. Yet many small and medium-sized enterprises pay little attention, if any, to protecting such intellectual assets.In the current business environment, the primary source of competitive advantage for all businesses, including those in the fashion industry, is innovation and original creative expressions.
The Indian fashion market is growing better than ever. The number of “Fashion Weeks” in a year is growing in the country. Latest designs by Indian fashion houses have done well abroad. Since fashion is not just restricted to apparel but also extends to luxury goods, better standards of living in the country have meant a greater demand for the luxury goods. But, Intellectual Property Rights (IPR) has been a burning issue in this sector. Fashion designers have frequently complained about their designs being copied without their permission. Such so-called piracy must be stopped as it is plaguing the growth of this industry.
A Textile Designs are also considered as a form of art which is an inception of mind and soul of an Artist.A “fashion design” is defined as the appearance as a whole of an article of apparel , including its ornamentation . The term “apparel” is defined to include men’s , women’s , or children’s clothing including outerwear , gloves , footwear , handbags , purses , totebags , belts & eye- glass frames . When an artisan spends enormous amount of time and energy in putting a design into an outfit in the textile industry, it is the duty of the owner of such precious works to protect his right legally so that no one can copy and take a readymade benefit for such work.
Design copying is widely accepted, occasionally complained about, but more often celebrated as “homage” rather than attacked as “piracy”. Why are the norms about copying in the fashion industry seemingly so different from those in other creative industries like in the film, music, software and publishing industries ?And why, when other major content industries have obtained (and made use of) increasingly powerful IP protections for their products, does fashion design remain mostly unprotected?
This article throws a light on an answer to the question and reviews the IP protection available to fashion designers worldwide and specifically the IP protection regime available to Indian fashion designers.
Fashion Industry & IP Protection
Trademarks help to maintain a prestige premium for particular brands, and can be quite valuable. Big fashion houses value their brand equity. Most develop a bond with their customers through their brand names and fiercely protect these through registration of trademarks and protection of associated artwork by copyright law. Trademarks are just as important for a small or startup company in the fashion industry.
Many fashion goods sold by street vendors are counterfeits that plainly infringe trademarks. Occasionally a fashion design will visibly integrate a trademark to an extent that the mark becomes an element of the design. Burberry’s distinctive plaid is trademarked, for example, and many Burberry’s garments and accessories incorporate this plaid into the design. Occasionally—and some would argue increasingly—clothing and accessory designs prominently incorporate a trademarked logo on the outside of the garment; think, for example, of a Louis Vuitton handbag covered with a repeating pattern of the brand’s well-known “LV” mark. For these goods, the logo is part of the design, and thus trademark provides significant protection against design copying.
But for the vast majority of apparel goods, the trademarks are either inside the garment or subtly displayed on small portions such as buttons. Thus for most garments, trademarks do not block design copying.
In addition to protection of source-defining marks, trademark law also protects “trade dress,” a concept originally limited to a product’s packaging, but which, as the Supreme Court has noted, “has been expanded by many courts of appeals to encompass the design of a product.” Some courts have gone so far as to hold that trade dress involves the total image of a product …such as size, shape, color or color combinations, texture, graphics or even particular sales techniques.” Many of the attributes constitutive of trade dress are, of course, key to the appeal of clothing designs, and trade dress might therefore play an increasingly significant role in the propertization of designs.
Trade Marks Designers can use trade mark law to protect not only logos and brand names, but also other distinct features of a product. For example, Bettina Liano has registered the distinctive pocket stitching on her garments as a trade mark, while British fashion house Burberry holds trade mark rights in both the trade mark “Burberry” and the Burberry check pattern. Burberry has enforced its trade marks in many jurisdictions against counterfeits including a recent action in the US District Court.
Copyright protection for Artistic innovations
An artist is entitled to protect artistic work under copyright law. Copyright protection is granted to an artistic work even if the work is already published and has been already in use. The protection under copyright is only limited to the drawing and any such representation in paper. There is no engineering work attached to it. When it comes to protect a work or design for textile industry one can seek copyright protection under the Copyright Act, 1957 in India for a period of lifetime of the artist and an additional 60 years after he passes away. A copyright subsist inherently to the work of an artist for its creation.
Patents may not immediately spring to mind when considering the fashion industry. Artistic creations cannot be patented and therefore patents are not widely adopted by designers.
Yet technical innovation can equally put a fashion business ahead of the competition. For example , inventions by Buck Weimer and CSIRO which control odour and body temperature respectively in garments have been successfully patented. Another example, can be Novozymes, a Danish biotech company specializing in enzymes and microorganism , pioneered the use of enzymes in the treatment of fabrics. Though not previously involved in the fashion industry, in 1987 the company developed and patented a technology for the treatment of “stone washed” denim jeans. This technology is based on an enzyme called cellulase, which removes some of the indigo dye from denim so as to give the fabric a worn look .Within three years, most of the denim finishing industry was using cellulase under license from Novozymes. Today, Novozymes’ technology for improving production methods and fabric finishing has been licensed worldwide. The company holds more than 4,200 active patents and patent applications.
A Design cannot be patented for the below reasons :
There are requirements for securing a patent in any jurisdiction is :
(1) The invention must be novel
(2) The invention must be non-obvious
(3) The invention must have industrial application
To be novel, an invention cannot be known or used by others anywhere in the world, or patented in another country, prior to filing for patent protection. The standard for determining non-obviousness is whether the invention would “have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” Because so many apparel designs are reworking and are not ‘new’ in the sense that the patent law requires,” it is unlikely that new fashion designs will be novel or non-obvious enough to meet the statutory qualifications for patent protection.
Protection under Industrial Design Act
When an artisan seeks exclusive protection for his work then he should register it under the Design Act, 2000. But the criteria to register a work under the Design Act, 2000 is that the work must be new without any prior publication and the novelty of the artist must be reflect from the design to get its registration.
In case an employee is attached to the creation of a design during his course of employment, the employer can only apply for the registration of such design. When the reproduction of an original artistic work is conducted by employing an industrial process, which resulted in a finished article and possessed appeal to the eye then the industrial process constitutes a “design”, within the purview of the Designs Act. The Design Act, 2000 gives a monopoly right to the owner of the artistic work for a period of 10 years and he can further extend it for a period of 5 years. Hence ,the Industrial Design Act and Copyright Act provides an umbrella for protection for all the artistic conceptions .
Piracy / Infringement of Registered Design :
Infringement under the Act means:
a) To publish or to have it published or expose for sale of any articel of the class in question on which either the design or any fraudulent or imitation has been applied.
b )To either apply or cause to apply the design that is registered for any class or goods covered by the registration .
c)To import for the purpose of sale any article belonging to the class in which the design has been registered .
So an infringement can be established by showing the following facts:
i) Existence of copyright in design.
ii)Fraudulent imitation applied by somebody.
iii)The fraudulent imitation applied wothout license or written consent of the registered proprietor.
iv)Application of design has been made for the purpose of sale of the article.
The following persons could be infringers of a copyright in a design :
a) A person who applied the fraudulent imitation of design without consent or license of the proprietor.
b) Importer of the design.
c)Publisher of the design.
Remedies in case of Registered Design :
The judicial remedy for infringement :
Civil remedies are :
a) an injunction
b) damages or compensation .
There is no provision for criminal proceedings against piracy of design .
A sum of not exceeding twenty five thousand rupees is recoverable as a contract debt & the total sum recoverable in respect of any one design will not exceed fifty thousand rupees. A suit is to be instituted in a District court or a high Court depending on the quantum of damages claimed.
Indian Fashion Industry and the Intellectual Property Regime
The Intellectual property regime in India provides for protection under Design Act 2000 , the Copyright Act , 1957 and the Geographical Indications of Goods ( Registration & prohibition) Act , 1999.Although there seems to be three distinct legislation , that protect three distinct characteristic in the process & lifetime of the fashion apparel or the accessory.
The artistic work in the sketches of the designs ( as soon as they are reduced to a material tangible medium ) is protected under the Copyright Act 1957 . The Designs Act 2000 is so drafted to permit protection of non functional aspects of an object , having visual appeal , such that design that include the features of shape configuration , pattern , ornament or composition of lines or colors applied to nay two dimensional or three dimensional or on both forms. The third schedule to the Design Rules 2001 provides an exhaustive list of products & articles in respect of which an application may be made to the controller. Such a design right reamins in force for a period of ten years , extendable subject to conditions for a total of period of 15 years.
Noting India’s diversity in traditional knowledge and other indigenous art forms , the current regime also affords protection through the GI Act 1999 . 15 kinds of GIs have been registered in respect of textiles . In addition to the law of designs. It is also pertinent to note that the Kasuti Embriodery form Karnatka, Kutch Embroidery form Gujarat & Sujini embroidery works form Bihar have all been granted GIs.
The Indian designers have heavily relied on ancient traditional and indigenous designs to create garments. A substantial number of designers rely on indigenous and traditional crafts , dyeing , block printing , and embroidery techniques to cerate new designs and structures .Indigenous methods such as phulkari , kantha , chikan kari & other forms of embriodery & cutting have been used to create apparel designs and revive ancient art forms .
Indian designers have understood the needs of the international market & are working accordingly. With the clever use of embellishments , indigenous techniques and craft – the Indianness intact – they are cretaing modern otufits which are receiving global response.
How Protection For A Fashion Design Can be Improved
Fashion design protection is not intended to protect trends, but to protect the appearance of an article of apparel. .Particularly problematic is that every design traces back to a pre existing design or trend. Fashion is a visual medium like sculpture or painting. And it has its own system of recordation of elements. Words are used to describe labels. A color system to describe shades of colors.
One important difference between copyright protection and fashion design protection is the length of protection and the life of the creation. If a designer brings an action for infringement of a registered design, it may take several months to pull together a court and jury to decide whether something is actually an infringement. By the time a court reaches a final infringement decision, the design may be obsolete and any preliminary injunction or intermediate action taken by the court may have hurt the party who was lawfully entitled to use and license the registered design.
Instead, if a panel of fashion experts were assembled to make decisions, not only would the decisions be made faster, but the panel would be better trained in fashion designs and, therefore, better able to identify infringements This would create greater consistency and may discourage frivolous infringement suits.
Large number of apparel houses that the revenue model consists of obtaining huge returns by licensing the trademark to smaller production houses. This trend creates different markets under the same logo by creating different clothing lines. For instance , designer Armani operates about 3 diffrent lines offering similar designs with a difference in queslity depending upon the price , that are identified by different logos Armani exchange. , Emporio Armani , & Giorgio Armani , each catering to different clientele differntitated by the ablity to purchase. This trend of cretaing diffrent lines makes the logo and brand vaialble to the not so elite category for a cut above the leser known brands, thereby limiting act of piracy and acts of refernecing.
Registering a original and new designs design helps the fashion designer to prevent others from misusing or exploiting the new or original aspects of the dress or any accessorizing article.
The fashion and clothing industry makes huge investments to create new and imaginative designs but because of the short life span of fashion and its trends, not many owners of the original designs make use of the available law on designs, which is for all practical and legal purposes is the sole remedy .The imitation of styles and designs is caused by the mass production of inexpensive and affordable copied version of the works of designers and fashion houses by retailers. Fashion trends are the assimilation of ideas, which arise, evolve through sharing, expanding and increase in popularity through exposure and alter in imitations.
In some countries and regions, such as the United Kingdom and the European Union, the law offers protection for unregistered designs for a relatively short term, but in India for protection Registration under the Designs Act is mandatory. The registering of all new or original designs sounds like an expensive and weighty process,especially in the light of the short span of life that fashion trends have. But it is a good practice, to register designs on a case-to-case basis.
Fashion trends are inspired by the ideas of the pioneering fashion designers and there is no law against wearing a design, which is similar to one worn by a fashion icon to a public place, but the least that can be done is protection of coveted Designer wear so as to restrain unscrupulous competitors from copying some of the most innovative creations.
One can design and create, and build the most wonderful designs in the world, but it takes intellectual property rights to enlarge its monopoly and prevent it from plagiarism.