Fashion contributes immensely to the economy in terms of revenues. This diverse and dynamic field needs to be explored and brought to the notice of enthusiastic and committed legal minds, who will strive for its official inclusions in the laws of this country and thus lend a helping hand to a section of society that the public sees only one side of. The fact of the matter is that it may be difficult to envision a set of laws in place for a profession that is considered “easy” in Indian society, but truth is that it is anything but. Fashion is expression and tradition and deserves to be treated as such.
The fashion industry is worth hundreds of billions of dollars. As such, while IP represents the prominent concern of the fashion designer, an industry this large cannot be single field of law. It encompasses corporate governance, real estate, labor, advertising, Internet and technology, import/export & more. This industry has unique challenges by virtue of its multiple seasons, international presence, aesthetic foundations, economic complexities, and more.
All of these factors can be seen in the central document of the fashion industry: the license agreement. Even the most basic fashion license will address IP (predominantly trademark). Territories, an involved definition of “net profit”, distribution channels, approval rights, marketing, and more. Add to that the growing necessity for each brand to have an online presence. The expansiveness and complexity of fashion may be daunting but can also be welcoming: there’s room for everybody and always more work to be done.
Because of the complex and blending nature of articles designed by fashion designers, they can be protected under various categories of IP as follows:
- The Sketch Design can be registered as artistic work under the Copyright Act 1957;
- The Article Design can be well protected under the Designs Act (under class 02, 03, 05 of Third Schedule of Designs Rules, 2000);
- Color Combinations can also be protected under Copyright Act, 1957;
- Fabric or any other material used in the Article can also be protected under Designs Act, 2000 and Patents Act, 1970 (if involves inventive step and is novel);
- Logo Designs can be protected under the Trademarks Act, 1999 where logo is part of design.
Trademark in Fashion
The rewards of a valuable trademark are not immediate, and for that reason are often overlooked as fashion entrepreneurs attempt to stretch towards getting established. Nevertheless, trademark can expand until it pervades the planet. Consequently, the designer’s initial budget should include a line item for clearance and registration of a strong mark that could also serve as a business name and URL. Work product should be reviewed frequently to identify potential marks based on consumer reaction to packaging, patterns, colors, etc. After all, a trademark is unlike other IP in that it is theoretically perpetual so long as it remains in use in commerce. There is no reason a respected trademark should not continue to gain value each season.
Copyrights and Protection of Fashion
What could be copyrighted?
- Textile Patterns
- Look books
Copyright vs Copyright Registration
Copyright exists without any formalities, but benefits from registration. The main advantages of registration are a prima facie copyright, attorney’s fees, and statutory damages- all elements that essentially shift the burden of proof, and its incumbent costs, onto any alleged infringer. The monopoly on copyright covers anything that is identical or substantially similar to the subject work.
Work for hire Doctrine and the Assignment
With interns, independent contractors and employees, it is particularly important to establish ownership over their copyrightable work. Under the Copyright Act, a work-for-hire can happen only in two contexts. One is the employer-employee context wherein the employee creates work in context of employment. Therefore, someone employed to create sketches will have no claim over those sketches. Still, designers like all employers, must resist the temptation to refer to someone as an employee solely for the purpose of claiming any copyrightable work product.
The Plaintiff is a famous boutique apparel designer brand in India. The Defendant is also a famous apparel designer and manufacturer in India. Both companies design attractive contemporary ethnic wear – creative fashion.
The Plaintiff brought a suit against the Defendant seeking an injunction against the Defendant from reproducing, printing, publishing, selling or offering etc. prints or garments which are a reproduction of the Plaintiff’s prints and garments. The Plaintiff claimed to be the first owner of the copyright in the artistic works related to these garments and also claimed trade secret violation by its ex-employees. However, the Plaintiff ’s designs were not registered under the Designs Act, 2000.
The Defendant on the other hand, argued that the Plaintiff’s case fell squarely under Section 15(2) of the Copyright Act, 1957 i.e. the copyright in the Plaintiff’s design ceased to exist as it had been reproduced more than 50 times by an industrial process.
The single judge of the Delhi High Court, citing in detail the Microfibers v. Girdhar and Co. case, on this very point, came to the conclusion that the suit was barred by Section 15(2) of the Copyright Act, 1957 as the Plaintiff’s copyright in the said works had ceased to exist.
Therefore, Ritu Kumar by reproducing the said designs on its apparels, more than 50 times, was not only disentitled to design protection but also disentitled to enforce its copyright in the original drawing of the design. The court concluded that there was no copyright infringement, not by comparing similarity between the Plaintiff’s prints/designs and the Defendant’s printed reproduction, but by holding that the Defendant was creating apparel by an industrial process and was not merely lifting and affixing a print taken from the copyrighted work of the Plaintiff.
It can be concluded by the findings in this blog that Indian law has not been suitably amended or created with respect to the fashion industry. Specific laws to safeguard the people directly and indirectly involved in this industry need to be safeguarded and provided for, whether in terms of monetary help or otherwise. Fashion contributes immensely to the economy in terms of revenues. This diverse and dynamic field needs to be explored and brought to the notice of enthusiastic and committed legal minds, who will strive for its official inclusions in the laws of this country and thus lend a helping hand to a section of society that the public sees only one side of. The fact of the matter is that it may be difficult to envision a set of laws in place for a profession that is considered “easy” in Indian society, but truth is that it is anything but. Fashion is expression and tradition and deserves to be treated as such.
Liability in Louboutins: Fashion Law as an Emerging Discipline- Rostrumlegal.com
Ritu Kumar v. Biba: Designs free at 50? -Spicyip.com