-Muskan Bansal, pursuing B.com; LL.B.(Hons.) from Institute of Law, Nirma University
Date : 26-09-2020
ROLE OF INTELLECTUAL PROPERTY IN PROTECTING FASHION DESIGN IN INDIA
“Hello ma’am, come to our shop, we have Manish Malhotra’s bridal Lehenga available in half the original price”.
We often hear shopkeepers advertising about the duplicate designs or apparels by copying the designs or the products used and designed by famous designers. They usually try to attract people by selling the product in lesser price in the name of discount to earn money. Today, in modern world, people have a general attraction towards fashion and they prefer to showcase their sense of fashion by purchasing the products belonging to various brand names. However, money is a barrier to such an endeavour and this is where contrabands and copies of the original creation come to rescue.
Fashion Industry in India is rising day by day and in the last decade it has undergone phenomenal growth, led primarily by domestic artists, some of whom have achieved international recognition in recent years. Designs, creativity and new patterns are at the very core of fashion. Not only is fashion restricted to apparel, it also extends to luxury goods and products in large part. Every year the fashion hub launches a completely new set of designs that needs to be covered and governed by an adequate legal framework. Protection of the creator from its misuse, aesthetic aspects, prints and features is ensured by IPR.
ROLE OF IPR
One would be curious to figure out how these are all important to the general definition of intellectual property rights. The reality is IPR and fashion is juxtaposed. The creations of designs that are approved as fashions are an individual’s artistic creations and the law of our land aims to preserve those creations by granting those designers an exclusive right to use these inventions to reap economical gains and manipulate them.
The plethora of statutes including the Trademark Act, the Copyright Act, the Designs Act and the Geographical Indication of Goods Act aims to protect the intellectual property rights relevant to the fashion industry’s creation.
It is the IPR division that ensures identification in the form of a logo, a function or other label to signify and differentiate a company from its opponents. The use of trade-mark law varies from preserving not only trademarks and brand names, but also other distinct product characteristics. Trademarks may also be shown either within the garment or subtly on small parts such as buttons. To protect these features, a brand has to register itself under Trademark law.
The main aims of the fashion industry’s mark law are on high demand. Its focus is on three main subjects:
- To get the attention of consumers;
- Trademark owners interest, and;
- Competitors in market.
Micolube India Ltd. vs. Rakesh Kumar trading as Saurabh Industries & ors., the plaintiff used a licensed logo as a trademark in this case. The Delhi High Court noted:
‘Having regard to the definition of a design pursuant to section 2(d) of the Designs Act, it may not be possible to register at the same time the same subject matter as a design and a mark. Post registration pursuant to Section 11 of the Design Act, 2000, however, cannot be restricted by the brand registrant to its usage as a trademark. The reason being: under Section 19 of the Design Act, the use of registered design as a trademark is not provided as a ground for its cancellation.
Therefore, this decision expanded the spectrum of trademark security in India. As a consequence, fashion designs licensed under the Designs Act are covered not only by the Act but also by the Trademark Act.
One problem that mostly disturbs the designers before the next designer series is released is how to prevent others from copying their original work that was created through intensive intellectual labor. The issue they face is to whether pursue protection of their original work through copyright or register the design to ensure its complete commercial use.
In the case Ritika Private Limited v. Biba Apparels Private Limited, the complainant, a boutique clothing designer brand, brought a lawsuit against defendants who were a leading name in ethnic wear, for an injunction to prohibit copying, printing, publishing, selling or providing prints or garments for which the claimant claimed to be the first owner. The legal question raise in this case was that if the plaintiff’s copyrighted work is used for producing some clothes, and the output of that clothe reaches 50 in number, then the plaintiff loses control of her copyright works? The court made a distinction between copyright-eligible designs under the Copyright Act, 1957 and the Designs Act, 2000. It held that copyright protects the original creation of the “artistic work” and offers minimal security for the commercial use of the same, while the Designs Act is the chief instrument for preserving the design’s industrial use, but the design need not always be original. The court found the case in favor of the accused and the complaint was then dismissed on the bar It held that copyright protects the original creation of the “artistic work” and offers minimal security for the commercial use of the same, while the Designs Act is the chief instrument for preserving the design’s industrial use, but the design need not always be original. The court found the case in favor of the accused and the complaint was then dismissed on the bar It held that copyright protects the original creation of the “artistic work” and offers minimal security for the commercial use of the same, while the Designs Act is the chief instrument for preserving the design’s industrial use, but the design need not always be original. The court found the case in favor of the accused and the complaint was then dismissed on the bar It held that copyright protects the original creation of the “artistic work” and offers minimal security for the commercial use of the same, while the Designs Act is the chief instrument for preserving the design’s industrial use, but the design need not always be original. The court found the case in favor of the accused and the complaint was then dismissed, relying on the bar under Section 15(2) of the Copyright Act, 1957.
The design enjoys copyright protection for a period of 10 years from the registration date.
- Geographical Indication
The Geographical Indication of Goods Act is perhaps one of those laws that could protect such creation. Geographical aspects are important to the fashion industry in terms of preserving unique handicrafts and fashion products that come from a specific location and consist of particular quality or reputation. The block prints produced by the artisans of various Rajasthani villages have been issued GI tags by the Indian Government. A GI tag means products originating in a specific geographic area have the right to protect those IP’s originating in that region.
Traditional or indigenous awareness is also important as regards the need to preserve specific cultural expressions in the country’s artisans and craftsmen’s designs, motifs, and production methodologies. India has a rich heritage of textiles and crafts in terms of abundant techniques of spinning, dying and printing, embroideries, motifs, designs and manufacturing know-how, all of which are unique to the nation and needs protection.
Patent refers to the latest innovation that involves modern technologies for manufacturing goods such as clothing, fiber’s, textiles etc. Patents are essential for the inventions to be commercialized. Under the Patents Act, the authors of the works cannot gain patent rights. Patents are given for the new innovation that will be beneficial to the public.
Looks are relevant in the fashion world. Design patents are all about securing unique ornamental appearances so considering this form of IP before introducing new lines makes sense for the fashion industry. As far as the fashion industry is concerned, numerous examples of patent rights include the technology used to produce CROCS shoes, wrinkle-free fabrics, fire-resistant UV filtering textiles and water-repelling textiles. The fashion industry has been unable to secure patents for the machinery they have, technical innovation is giving their machinery for the great economic business push. The fashion industry produces their products (such as clothes, boots, shoewear, and many other items) with the aid of the technological innovation to deliver their goods in the market.
Therefore, one can easily understand that the designers need to be aware of their rights in order to protect the IP in the fashion world and should develop an IP security plan before selling their creation in order to obtain the IPR protection cover for their creations in India.
In recent years, the fashion industry has evolved significantly, driven by liberalization, further strengthened by effective law enforcement and enforcement. However, it has been noted that most of the time the designers fail to protect their IP using the legal route. We found similar occurrence in the case of Ritika Apparels where the defendants went scot-free due to the lack of proper security.
There is a genuine need to reconsider the range of safeguards available to fashion designs with awareness of the significance of intellectual property in the fashion world. Fashion designers should be educating themselves about intellectual property rights and seeking to find the best protection possible for their fashion designs. Nevertheless, it appears from recent developments that fashion designers are educating themselves and being cautious about their intellectual property rights regarding the apparel / products of fashion. Sensitizing individuals about their rights over their development is crucial as enforcement of these rights would allow a nation to achieve prosperity based on their intellectual property.