Fashion Law: Introduction and Scope

INTRODUCTION

India is considered as the second-largest producer of textiles and garments in the world. This is because India is a home of various raw materials needed for garment industries like cotton, wool, silk, and jute, coupled with the skilled workforce that has turned out to be a big booster for the fashion industry. It is \estimated that the textile industry accounts for 14% of industrial production, which contributes almost 4% of India’s Gross Domestic Product (GDP), and provides employment to approx. 45 million people.

Not only that, but the industry contributes towards 12% of the Indian Exports also. It is estimated that this will lead India to have a business of 223 billion USD by the year 2021. The fashion industry is massive and is constantly growing across borders for a very long time thus making it global phenomena. Fashion has able to attract people from all around the world who are willing to pay heavy prices to make them look good and more desirable.  Thus this increase in the fashion industry of people did bring various challenges also. It became necessary that norms can be created that ensures that the fashion industry grows big without the involvement of any illegal practices or legal issues.  This leads to the emergence the fashion law.

The fashion law brought a new aspect and involved issues like Intellectual Property Rights particularly trademark law, copyright law, and at times it also includes the Patent and Trade secrets. Trade secret and patent becomes relevant when the fashion industry has developed a new manufacturing process in consumer’s clothing, footwear, and other accessories. But the fashion industry has faced dynamic changes with time. Many people consider fashion as a form of social change. In the field of law and fashion, whatever is created is unique and hence to be protected and to be kept safe with the help of Intellectual Property Law.

BACKGROUND OF FASHION LAW

Fashion law is an area of law that deals with the various segments of intellectual property rights such as copyright, patent, trademarks, trade designs, etc. Back in the year 2008, Susan Scafidi, the United States law professor for the first time offered a course in fashion law after with fashion law emerged as a distinct field of law. After which the fashion law grew tremendously along with other technological advancements. Various American and European started a well-framed fashion law as a key subject.

On the other hand, Paris and France became the world capital. Hence Fashion became a very important trend in France in the late 17^th century. This attracted those who came out with cheaper and copied versions of fabric. Back in the year 1920, fashion became easies to copy and duplication was easy. Copying became easier and became a new problem. Hence copyright extended in countries like France and England that aimed towards protecting the design. Though the patent law did not aim towards protecting the protection of law and culture. It became necessary that a system was required for designers to protect the design so that once their item is made public, no copying or duplication can be made once the design is made public so that the price of the original item is not reduced nor someone’s creativity is reduced. 

FASHION LAW IN INDIA

India is not far behind in fashion among countries like the United States of America and European counties. A body named “The Fashion Foundation of India” was constituted that consisted of the leading designers in India so that the protection of Intellectual Property Rights can be given against infringement and rampant copying. The intellectual property regime in India provided protection to the designer under various laws like the design act 2000, the copyright act 1957, and the Geographical Indications of Goods (registration and Prohibition act) 1999. Even though there were three distinct laws to protect the field of fashion, giving a more legal emphasis.

The artworks of designers were protected under the Copyright Act 1957. The Design Act 2000, provided protection to provides protection to the non-functional aspect of n object having visual appearance which includes the features of shape configuration, pattern, composition of line, and color pattern. The third schedule of the Design Rules 2001 provides an exhaustive list of products and articles in respect of which an application can be made to the controller. Such design right remains in force for a period of ten years extendable to certain conditions for a total period of 15 years. Under the Intellectual Property Rights, there is Fashion Design Piracy. Piracy refers to any act that involves unauthorized copying, redistribution, or reproduction of any kind of property that comes under IPR Laws.

Fashion Design Piracy includes two things that are:

• Copying; and
• Counterfeit.

Copying is done when the design of an artist is copied which is also known as ghost designed. At times, those who copy the design make just a few changes after which they sell the apparel under a different brand or label that might confuse the consumer, thinking it to be an original product.

Counterfeit, on the other hand, involves not just copying the product but also making it with the label of the original product so that the consumer thinks it of the original product and hence paying a big price of it. 

IPR Laws in India that provide Legal Protection

1. Design Act, 2000

 Under the Design Act 2000, one can protect its creative and original designs which can both three dimensional or two dimensional or both and can be created through an industrial process. By registering the designs under Section 2 of the act hence protecting the original work from the act from infringement and counterfeiting. But this protection is provided top the designers if they comply with the conditions that come under the ambit of “design” which is given in Section 2 of the said act. Also, the act gives safeguards to other aspects of apparel like the patter, shape, and color.  This protection of the design can be given for unto 10 years which can be further extended to 5 more years making a total of 15 years under which a design can be protected. It also provides legal solutions in case of infringement of the law.

2. Copyright Act, 1957

Indian copyright act, 1957 also provides protection to the unique creativity of the designer. It also provides exceptions to protection such as ‘fair use’ and ‘compulsory license’. Under Section 2(c) of the act, artistic work is defined. In the famous case of, Rajesh Masrani v Tahiliani Designs Pvt. ltd it was held that drawings that are made in the furtherance of design and the patterns printed or embroidered in the garments. The design can be protected for an entire lifetime of the designer and which can be further extended to 60 more years. The design is protected once it is completed and needs no registration as in the case of the Design Act. However, section 15 of the act hints an overlap, and thus, the conflict between the design and the copyrights act.

3. Trademarks Act, 1999

 This act comes into picture when some design has some logo, titles, words, or mark embodied to such an extent that the logo becomes the part of the design thus protecting the brand name also it also provides a legal remedy in case of infringement. For eg. Green-red-green strips of Gucci. And the LV in Louis Vitton bags. Such marks are protected under the trademarks act.

4. Patent Act

The Patent Act is lesser used in the fashion industry. This act protects any new innovation which can be technical from the field of the fashion industry. Like, the discovery of jeans that are not washable or a fabric that regulates body temperature and gives good odor.

5. Geographical Indication

A new tool in the hands of law enforcers is a geographical indication that protects the traditional art forms and goods of a territory such as Madhubani art, MUGA silk, etc.

Case Laws

1. Ritika Private Limited v. Biba Apparels Private Limited[1]

In the case of Ritika Apparels, one of the parts copied the exact same design of another party’s designer, does few changes, and sold it under their own name. The party whose design was copied moved to the court alleging that there was a copyright infringement involved. But Biba (the defendant) claimed that no such thing was involved as under the section 15(2) of the copyright act 1957, there was so infringement as the plaintiff has already lost its copyright due to the fact that there were more than 50 times, the production of that design by industry was involved.

Other thing was that the Ritika had not registered her designs under the Design Act, her brand had no means of protecting the said design other than producing products having the same design less than fifty numbers of times. Thereby the defendant company, BIBA used this loop of the intellectual property right and thus were not imposed any liability. This case can be considered as the landmark case because the designer who claimed that her designs were copied had no information or awareness regarding the IPR law related to fashion in India. If the design would have registered under the Designs Act, 2000 the same design would have been protected for a total period of 10 + 5 years. But perhaps the designer wanted to keep a monopoly on the same design for a longer period of time and thus used the copyright law which later on was turned against her thus leading to the BIBA becoming free of any liabilities.

2. Christian Louboutin v. Mr Pawan Kumar & Ors.[2]

This is another very famous and well-known case in India. Christian Louboutin is a very important one, whereby a big brand famous for its highly stylized designer shoes dealt with the selling of counterfeited products at a lesser price causing loss both to the brand name and to the financial coffers of the company. Christian Louboutin’s Red Sole shoes are quite popular among the celebrities and the red-colored high heeled shoes are quite a rage among the customers who intend to copy their favorite celebrity’s fashion sense and style.

The shoes of the brand are very expensive thus the majority of the people cannot afford those shoes. The reputation of Louboutin’s brand is big and is a huger brand famous for making high-end shoes and bags… Louboutin’s shoes are known by their distinctive and characteristic red-colored soles which are common in all his creations and are marketed through specific channels and stores

Louboutin’s products are protected under the trademark laws and the goodwill and reputation of the brand existed even before the brand’s formal entry into the Indian market. The defendants started marketing counterfeits of the much-celebrated red sole shoe, however, with different color schemes where the soles were red but the other parts came in different color schemes.

In this case the plaintiff, Christian Louboutin went to the court demanding a  permanent injunction and compensation claims from the two stores (Kamala Footwear and Adara Steps) selling counterfeit products of Red Sole Shoes. The court in its judgment held the defendants liable to pay a total sum of Rs. 10.72 Lakh, while they were an injunction, permanently from selling the counterfeits again. The Judge in its judgment declared Christian Louboutin as a well-known mark, a much sought after tag for any brand owner. The infringement of Louboutin’s mark and successful prosecution of the defendant shoe store owners are the best examples of how a designer or a brand owner needs to protect his or her trademark.

3. Puma SE v. Forever 21, Inc. [3]

The giant German sportswear brand filed a case against the apparel company, Forever 21 for copying its footwear design which was originally created by Rihanna’ s Fenty beauty for Puma With the aforementioned case in mind, the lawsuit that Puma filed against Forever 21 in early April is significant. On the heels of reports that Forever 21 is offering look-alike versions of footwear from Rihanna’s Fenty line for Puma. Puma filed a case against Forever 21 dealing with a design patent, trade dress, and copyright infringement lawsuit.

According to Puma’s suit, Forever 21 copied three of the most prominent footwear designs from Rihanna’s collection for Puma in attempts to “trade on the substantial goodwill of Puma, Rihanna, and the Fenty shoes.”

Puma set forth claims of a design patent, trade dress, and copyright infringement. The puma’s counsel also applied the test defined in the Star Athletic v. Varsity Brands decision, citing: “The Fenty Copyrights (1) can be perceived as a two- or three- dimensional works of art separate from the Fenty Shoes and (2) would qualify as a protectable pictorial, graphic, or sculptural works—either on their own or fixed in some other tangible medium of expression.”  

Suggestions

 As we take into account the numerous issues involved, it is quite clear that there are various laws and legal remedies available for the field of fashion so are to ensure that the creativity is protected, but many times the designers are at fault as they lack the knowledge relating to IPR Laws. No doubt the laws that are made are not adequate but the designer has to be a bit more alert regarding the designs they create and getting them copyrighted. Following are the few ways of combating the problem, which is as follows –

1. The limit of 50 should be increased in the Copyright Act taking into consideration, the number of consumers and the rising population the fact that the machine production is in vogue nowadays.
2. Apart from the sellar, one who is buying the products that he knows are copied and counterfeited. The laws must be made in consonance with international standards like that of France.
3. A certain percentage of profit should be paid by the brands who sell the copied design, much like the EU GDPR penalty provisions.
4. Enforcing the IPR along with a few other criminal charges, ensuring a strict implementation will reduce the cases of counterfeiting.
5. Sensitizing the Designers about the need for protecting their IP in the correct way so that future troubles can be averted.
6. Just like the designers, the public and the buys should also be made aware of the consequences of buying such products.

Conclusion

The fashion industry around the globe had gotten bigger with time and thus it has attained an important position in the global economy. This had lead to an increase in the growth of IPR in the context of the field of fashion also, everyday new and fresh designs are created by the designers who work day and night. But somehow, this growth is hampered due to the copying and fashion piracy which has emerged as a problem in the fashion industry.  The same way the fashion industry in India faces the same sort of problem. It seems that the Indian law of Intellectual Property rights is not enough to stop this piracy. It is important that a separate definition of “fashion design” should be there. Under the Design Act, 2000 and this definition should facilitate the entire appearance and overall look of a particular piece of apparel or garment as against the present definition under Section 2 (d) of the Act which protects each aspect of a garment individually.

Also, there should be an easier and simpler procedure under which designers can get their pieces registered. Protection for the unregistered designs should also be there and thirdly, the provision for the protection of unregistered design should also be included in the Designs Act, 2000.  It is extremely important to realize that such acts of duplication and counterfeiting is not only a drawback for the various multinational fashion brands drain India, but also hampers the growth of the economy.  Hence there is an urgency of better and strict implementation of the Intellectual Property Rights Law.

The designers should have the right to protect their designs created after immense handwork, from being copied and to avoid its sales at cheaper rates. It’s important that the Copyright Act, Design Act, Patent Act, and the Trademark act should be made more effective. The Constitution ensures everyone, freedom the choose the profession of their choice, hence it is the duty of the state to ensure that such laws are made for the fashion industry as well that there is no exploitation or misuse of any designer’s creativity, big or small.

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References:

[1] CS(OS) No. 182/2011

[2] CS(COMM) 714/2016

[3] C.D. Cal. June 29, 2017