In the ever-evolving and all pervasive industry of fashion; the creative expression of manufacturers and brands must be protected through Intellectual Property Rights (IPR). The brand that markets their design assets to strengthen their business position within Fashion industry are intellectual capital of that brand.
The most notable challenge of considering IP within the fashion industry, is handling the protection of numerous designs and brand logo’s and mark on a seasonal basis. This includes the protection of the brand design for each product as well as searching for and creating relevant and captivating names for each design.
Do you know what does the word Fashion means? Before I start my topic all of you might not be aware of what Fashion is. So let us see…
What is Fashion?
[i] Fashion is a form of self-expression and autonomy at a particular period and place and in a specific context, of clothing, footwear, lifestyle, accessories, makeup, hairstyle, and body posture. The Fashion is not something that relates to clothing but it includes the makeup you are wearing or the jewellery you are using. Fashion is a form of art and art is the way of expressing ourselves.
Now Fashion is a trend which defines a lot of people and it touches everybody and every section of society. The fashion industry has maximum participation of 100%. Fashion will never fade away. From 70’ to the ’80s fashion was there. It may change its form, Fashion in the ’80s might be different from the fashion we are following now but it remained and will remain.
Great Indian Wedding Season is on and every Indian Bride would somewhere have a dream to wear the best bridal Lehenga or best-designed jewellery on the most special day of her life. The dream attire was designed by Sabyasachi Mukherjee or Manish Malhotra. We all open-mindedly adapt to new Fashion challenges that we come across. We all want to try big brands like GUCCI, LOUIS VUITTON, Chanel Prada, etc bags and their collections, FILA shoes, Adidas, Nike. But what when you are cheated by someone and buys a product that is not real but fake. What a pathetic situation it is because generally, the budget of big brands can cost your 1-month salary or more. With the increasing trend of online shopping many products.
Infringement of IP Rights of Fashionista
[ii] Online shopping has become like a ritual in our daily lives. Everyone is stick to it. From grocery to cosmetics to medicines, everything you only need is a click away. Amazon, Flipkart, Nykaa, Grofers, AJIO are some popular shopping websites. People rely on buying their everyday essentials from these websites because they gave assurance to the customer about Quality and Quantity. Whenever there’s a season sale, we could find an unrealistic discount of 70-80% off of MRP on luxury brands, we should spot the first red flag as it’s too good to be true and consumers must be Beware at that very point!! Not only in Online Shopping but there is a flood of these Fake products in the market too, that are easily available at cheap rates. Some cosmetics and perfume brands are mostly victims of the ills of infringement. Besides cheating on you, these fake products sometimes cause severe damage to your skin.
So, the question arises that can’t do anything about this. Will consumers are exploited in the same way and who would protect the rights of sellers and manufacturers of these big brands to prevent the loss suffered by them due to infringement of their IP rights. Is there any law to protect them? Don’t worry, I will answer them and will tell you that why do we need Intellectual Property in Fashion Industry which is our topic.
So basically, what does the word intellectual property mean? Intellectual Property is a category of property that includes intangible creations of the human intellect and is a result of human creativity. The most well-known categories are Copyright, Patents, Trademarks, and Trade Secrets.
Intellectual Property Rights are the rights that protect your concept and your creative expression, even though whether you are in Fashion or any other industry. Intellectual property rights are the exclusive rights given to a person or company to over creations of the mind. The ideas in IP are not protectable, but the artistic expression of an idea is and hence enables people to earn financially or gain recognition from what new they have invented or created. It aims to foster an environment in which innovation and creativity can flourish.
Intellectual Property in Fashion
The fashion industry covers a wide scope of Intellectual property rights within it. Fashion industry is not only identified with the changing trends in clothing styles but everything in this world contains fashion, from the collection of clothes to footwear, jewellery, accessories, etc. The fashion industry is growing rapidly and many well-known Indian Designers such as Ritu Kumar, Rahul bal, JJ Valya have succeeded in protecting their fashion designs.
As Per Section 2(ZB) of the Trademarks Act, 1999
“Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging, and combination of colours.”
A question arises that why do we need Trademark Law in Fashion Industry and how does it protect our rights???? So here are some: –
- They Create Brand Recognition
- Crucial asset for a company’s reputation and goodwill
- It Gives a Sense of Autonomy to your business
- A Trademark is for Life
Can you Register Colour as a Trademark?
In various jurisdictions around the globe, it is recognized by the court that colour, either standing alone or in combination with another color, can function as a trademark or design patent and is registerable.
Unlike conventional trademarks like words, devices, and labels, colour trademarks face many challenges at the time of registration and enforcement. It is well known to all that a colour trademark can never be inherently distinctive, but can become protectable on proof of having acquired or containing some secondary meaning of distinctiveness.
Colour trademarks, like any other trademark, can act as source identifiers of the brand, helping manufacturers and consumers to distinguish their goods and services from those of others. Some of the famous examples which have been recognized by the courts and trademark offices as colour trademark include the Green-gold colour of the dry-cleaning pads used by Qualitex, the red sole of Christian Louboutin the robin-egg blue colour associated with Tiffany & Co, and the brown colour used by UPS for their trucks, Ferrari red.
Did You Know why UPS registered brown as their colour trademark and not any other ?
Because dirt is less visible on brown and brown is a mark of class and elegance as per UPS.
The Robin-Egg blue colour associated with Tiffany & Co.
[iii] Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of creative work, usually for a limited time. A Copyright gives protection over artistic expressions and not just ideas. It encourages new artistic creations and innovations. When someone creates an original product that requires significant mental activity to create, this product becomes an intellectual property that must be protected from unauthorized duplication. Examples of unique creations include computer software, art, novel, film, poetry, graphic designs, musical lyrics and compositions, original architectural designs, painting, website content, etc. For example, Diane Von Furstenberg wrap dress, in this the wrap dress itself is not protectable, but the design of the wrap dress is protectable.
In Fashion Industry, the Copyright Act does not protect the entire garment of dress as a whole; rather it protects the particular or individual aspects like shape, pattern, colour, etc. of it.
To protect his/her creation under the Copyright Act, 1957, Fashion designer or company needs to prove that:
- That his/her creation is an original artistic work and not a copy within the meaning of the Copyright Act, 1957; and is not a design within the meaning of the Designs Act, 2000; and
- That the product has something creative in it to pass the criteria of being registered under the Copyright Act, 1957.
- Copyright must be held by the creator, that a non-human creator (not being a legal person like an animal) cannot hold the copyright for example Monkey Selfie Case.
There is a well-known recent case under Copyright.
Monkey Selfie Copyright Dispute
In this case, David Slater, a photographer left his camera equipment out in a group of wild macaques to explore, the monkeys took a series of photos which included selfies. The photos were posted publicly in a newspaper. Slater claimed that he holds copyright over them. From that legal dispute arose around that who should own these copyrights —the human photographer who engineered the situation, or the macaques who snapped the photos. This unique case raised the question that whether non-legal persons can claim copyright protection.
In this case, the court held that it was the monkey who clicked his pictures and from that very point he is the owner of that photograph and not the Slater. A non-human cannot claim copyright protection, So, this image is not protected under the law.
Piracy involves the unauthorized copying of original fashion designs. It is very common in the art and design industry. Designs created by fashion designers can be protected under various categories of IP as follows:
- The sketch design can be registered as artistic work under the copyright act, 1957.
- Design can be well protected under the designs act under the third schedule of design rules 2000.
- Colour can be registered under Trademark Act, 1999.
- Type of Fabric or any material used in art or design can also be protected under the designs act, 2000 and patents act 1970.
- Logo designs are protected by the trademarks act, 1999. The logo of Apple Company is registered as a Trademark.
Relevant Legal Provisions relating to Fashion Industry are:
Intellectual Property Rights Law in India protects the fashion design under these three legislations and they are:
- The Designs Act, 2000,
- The Indian Copyright Act, 1957,
- The Trademarks Act, 1999, and GI Act, 1999.
Design Patents recognize the creation of new and original features of new shape, configuration, surface pattern, ornamentations, and composition of lines or colors applied to articles which in the finished state appeal to and are judged solely by the eye.
The registration and protection of industrial designs in India is administered by the Designs Act, 2000
Some of the well-known Design Infringement cases were:
- Apple vs. Samsung
- Nike vs. Sketchers
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