Intellectual Property Rights: A Boon for the Fashion Industry
Author: Aanchal K Golecha
University: Christ University, Bangalore
Course: 3rd Year, BA LLB (hons)
ISSN: 2582-3655
Abstract
Intellectual Property Laws play an important part in the fashion industry. It helps the designers to protect their designs and gives a sense of credit to the creator. It also helps in promoting innovation in the country. Copyright, Patents and Trademarks are the most powerful tools available to the fashion designers.
This research paper aims at giving a comprehensive understanding of the inter-relation between the fashion industry and Intellectual Property Rights. The author gives an insight into jurisprudential aspects of the applicability of the Intellectual Property Laws in the fashion world. The paper also gives a detailed understanding of the various problems faced by the professionals in the fashion industry with regard to protecting the copying of their designs. In this research paper, the author aims to encapsulate the various rights and remedies available provided to the fashion designers in different legislations such as that of the Copyright Act, the Trademarks Act and the Patents Act.
Introduction
Intellectual Property Rights are the rights given to people over the creation of their work for a fixed period. Intellectual Property Rights are intangible assets that consist of numerous properties like Copyright, Trademark, Patent, Industrial Design, and so on. The Fashion industry is a multi-billion global industry contributing to 2% of the world’s Gross Domestic Product. With this exponential growth of the fashion industry, apparel and garments are no more just a social and cultural need but have set off to become a way to express art and aesthetics[1].
Today’s fashion designs can be divided into three categories, on the topmost spot is ‘Haute Couture’ which includes custom-made items, tailored for a specific client. Below that is the designer-made clothing like those of Gucci or Christian Dior. Next is the moderately priced clothing which is also called ‘better fashion’. The last in the category is the lowest-priced clothing, often called ‘Fast Fashion’ sold in stores like H&M and Zara[2].
Counterfeiting and piracy remain one of the biggest problems in the fashion industry. In the year 2020, the sector saw a loss of more than $50 billion due to the manufacturing and sale of fake products. Besides causing pecuniary damage, counterfeiting also impacts the goodwill and reputation of the brands. Luxury brands like Gucci, Chanel, and Louis Vuitton are the biggest victims of this crime[3]. Piracy starts right from the runway, designers of brands such as Prada and Chanel spend months curating their collection that gets showcased during the fashion weeks. The smaller retailers and corporations begin to copy the designs to be a part of the trend. Once the trend becomes all over the market, the designers start curating new designs to be at the forefront of the latest trends. This cycle is termed as “Piracy Paradox”[4].
The purpose of Intellectual Property Rights is to ensure that adequate recognition is given to the creator’s skill and efforts sequentially encouraging better innovation in the country. In the present fashion world, creativity and originality is the primary source of competitive advantage. With the Fashion industry growing in leaps and bounds, protection of the authenticity of the creator’s works and ensuring that it is not copied by someone else becomes especially important.
There are three important theories that relevant to the ownership of ideas and extremely important for the protection of designs in the fashion industry.
- Utilitarian Theory
The Utilitarian Theory is given by Jeremy Bentham and according to him utility is the characteristic feature of any object that leads to produce pleasure, happiness, advantages and prevents unhappiness or pain in the community at large and to individuals in particular. Bentham says that the goal of any law should be to maximise happiness for every individual which will in turn create happiness for all.
Similarly, the theory applies to the Intellectual Property laws as well. The implementation of Intellectual property laws in the fashion industry encourages innovations and promote a significant economic impact on the society. The prevalence of counterfeiting and piracy in the fashion industry discourages investments in the production of new ideas. The designs curated by luxury brands are often copied and sold at a lesser price. Their ability to make copies unjustly allows them to make profits that in turn has a detrimental effect on the original creator’s reputation, sales and goodwill. Besides, it also has an impact on the society as a whole. With Intellectual Property Laws in place, the creator’s get the required protection and are incentivised to create new designs and ensure that the market is constantly thriving.
However, the conventional assumption that innovation is deterred by copying and free riding does not exist in the fashion industry. In fact, copying spurs up greater interest in designers to curate new collections and start new trends. It is this cyclical nature of the fashion industry that makes it incompatible with utilitarian arguments for intellectual property protection[5].
- Personality Theory
The Personality Theory or the Personhood theory propounded by Hegels says that the creations made by the creator helps in building his personality and hence, the individual’s personality is inherent to his or her property right[6]. According to his theory, the things one owns has a close nexus with his or her self-development. Radin extends this theory and says that owning property goes beyond self-development, it becomes a part of our identity.
Applying the Personality theory to the Intellectual property means that legal protection should be granted to things that one owns which is an extension of his or her personality. Today, clothes are not just a necessity, but a luxurious commodity. The designs on clothing have become pieces of art and a form of creative expression. In other words, people wear certain clothes not just out of necessity but to express their identity or personhood.
When a particular intellectual product is appropriated by another and he or she identifies it, then it becomes a part of their personality as well. Applying this theory to the Fashion industry, when designers work on their fashion designs, it becomes an extension of their personality and attributing Intellectual Property Rights to those designs only strengthens their individuality.
- Natural Rights Theory
The Natural Rights Theory given by John Locke introduced the idea of giving the fundamental right and authority of a property to the person who has created it using his labour and appropriating that property is simply unfair[7]. He also says that laws should be based on morality, ethics and justness[8].
This theory forms the basis of the Intellectual Property Laws, i.e., to respect and recognise the creations of people. Thinking of an idea is also a form of labour and labour establishes fundamental ownership right in whatever the thinker makes of the idea[9]. This theory plays a vital role in the fashion industry as well. It takes months together for the designers to plan and execute their designs, and when small enterprises and retailers copy the designs.
Patents, Trademarks, and Copyright have the maximum application and use in the fashion sector. The true essence of Fashion can only be brought in with the implementation of a concrete framework to protect the creator’s work.
Copyright & Fashion: Understanding the Designer’s Dilemma
Copyright can be defined as the bundle of rights that are vested in someone who creates an original work that falls in the category of literary work, dramatic work, artistic work, musical work, and cinematographic work. The duration of copyright is the lifetime of the author or artist, and 60 years which is counted from the year following the death of the author[10]. Section 2 (c) of the Copyright Act, 1957[11] defines artistic work to include paintings, sculptures, drawings, photographs, architecture designs, or any other work of artistic craftsmanship[12]. Although products such as bags, shoes, or garments cannot be copyrighted per se, their artistic design is protected under the Copyright Act. Copyright law does not grant full protection to “useful articles”, this implies that a designer’s sketch would only qualify for copyright protection if he or she can prove the physical and conceptual separability of the designs.
In India, Fashion Design can be protected under the Copyright Act, 1957 as artistic work and under the Designs Act, 2000 as designs. These legislations offer two kinds of protection for designs on clothes. First, is the protection for the drawings and colours on the apparel under the Copyright Act as ‘artwork’ and second is the shape of the clothing which can also include its fabric or style under the Designs Act[13].
The overlapping of the Copyright Act and the Designs Act leads to the Designer’s Dilemma, i.e., a dilemma that the designers often find themselves in while choosing between copyright and design law to protect their work[14]. Section 15 of the Copyright Act[15] states that copyright will not last if the work is registered under the Designs Act as well. The Copyright Act makes it clear that registration of design and copyright over a work cannot exist side by side. Section 15(2) of the Copyright Act, 1957[16] imposes a limit on copyright based on the quantities of the designs. Any work that is not registered under the Designs Act and the design has been applied to more than 50 pieces of the article, then the owner of such copyright shall be deprived of all the rights under both the Acts.
The Designer’s Dilemma was elaborated upon by the Court in the case of Ritika Private Limited v. Biba Apparels Private Limited[17]. In this case, the plaintiff filed a petition claiming that the designs printed on their garments sold under the name of “Ritu Kumar” were duplicated by the defendant. The plaintiff contended that they were the exclusive owner of the designs and had the sole right to reproduce, publish, print, sell and distribute the same. The defendant, on the other hand, contended that the plaintiff did not have the copyright as they had exceeded the 50 times production of the design and sketches and lost the copyright as per Section 15(2) of the Copyright Act, 1957. Besides, the plaintiff had not registered its designs under the Designs Act, 2000, and hence, there was no copyright infringement done by the defendant[18].
Further, in the case of Microfibers Inc. v. Girdhar & Co. & Anr.[19], the court reiterated that if the designs are not registered under the Designs Act, 2000, they will lose the copyright under the Copyright Act after crossing the threshold limit of 50 times of reproducing the designs.
Patenting Fashion: A Possibility or Not?
A Patent is a type of Intellectual Property granted to the inventors of a particular product or process. It gives the inventor the exclusive right to sell, make, offer or offer to sell the invention[20]. There are three kinds of patents- Utility Patents, Design Patents, and Plant Patents. The Patents Act, of 1970 gives the protection for design patents for 14 years and 20 years for utility patents[21].
The three primary criteria that help in determining the patentability of a product are- novelty, non-obviousness, and industrial application. The trends in the fashion industry are dynamic, therefore the Law of Patents is not always the best option for fashion professionals. However, fashion patents give the inventors a chance to protect their designs, products, or process relating to their work. In the Fashion Industry, various examples wherein Patents protection has been granted include the technology used to manufacture CROCS, wrinkle-free fabrics, UV filtering textiles that are resistant to fire, and water-repelling textiles[22].
In the case of Stretchline Intellectual Properties Ltd v. H&M[23], the issue revolved around the patent acquired by Stretchline for tubular fabric particularly used in underwired garments such as brasseries. In the year 2010, the plaintiff and the defendant formulated a Settlement Agreement according to which H&M agreed to not deal in any product that fell within the claims of the Patent. However, in the year 2015, H&M breached the terms of the Agreement[24]. The court considered two things while deciding whether H&M infringed the patent of the petitioner –
- The technical matter used in the construction of the Patent can be determined by understanding what a person skilled in that art would understand from the patent.
- A person skilled in the art for which the patent is granted.
Although obtaining a patent can improve the credibility of the designs, it is impractical for most fashion designers mainly because design patents are granted only for designs that are truly “new” and therefore, modifications to existing designs cannot be patented. Moreover, the process of getting a patent application is lengthy and tedious, and most designs go out of trend even before they are granted protection.
Trademarks: An Asset for Fashion Designers
Trademark is a type of Intellectual Property which helps in distinguishing the goods and services of one enterprise from those of the other enterprises. A trademark is a word or a symbol that helps in the identification of the origin of products or services to consumers[25]. A trademark helps in establishing goodwill for the brand and ensures that the source of goods is engraved in the minds of its consumers. When a brand acquires trademark protection, it prevents others from using the same or similar mark which would cause confusion and deception in the minds of the people regarding the credibility and authenticity of the goods or services. Trademark protection has therefore has been beneficial to fashion designers because of the human behaviour regarding exclusivity[26].
In the case of Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding Inc.[27], Christian Louboutin, a luxury footwear brand applied to register the red sole of their shoes for protection. In the year 2011, Yves Saint Laurent (YSL), a Paris-based Fashion house released a collection of monochrome footwear in various colours including red. Subsequently, Louboutin filed a trademark infringement suit against YSL for the same. YSL filed a countersuit claiming that Louboutin’s Red Sole Trademark lacked distinctiveness, making it ineligible for trademark protection. The court, in this case, focused on whether the Red Sole Trademark had acquired a secondary meaning and after considering the evidence, the court concluded that they had acquired a secondary meaning and that people identified Christian Louboutin’s shoes with their Red Soles[28].
Although these trademarks are a way to establish the brand’s status, they are inadequate because obtaining a trademark for marks that are not brand names can be a difficult task. Certain descriptive marks can only be granted trademark protection if it is proved that they have acquired a secondary meaning. Attributing a secondary meaning to brands is a long and tedious task. A long-term use of the brand in the market, huge sales and massive expenditure on marketing and advertising are some of the prerequisites [29]. Hence, it is gruelling and an expensive affair for designers who lack the required resources.
Conclusion
“In order to be irreplaceable, one must always be different[30]”
- Coco Chanel
The current legislation relating to Intellectual Property is not sufficient and effective to protect the fashion industry. There is a need to formulate optimum regulations to ensure that the efforts, skills, and expressions of fashion designers are respected and protected. The tedious procedures in the legislation should be relooked upon to make it compliant with the dynamic nature of the fashion industry. Moreover, there is no adequate awareness among all the professionals in the fashion world regarding the various rights and remedies available to them. Steps should be taken to execute the Intellectual Property Laws at the grass-root level in order to ensure that crimes such as counterfeiting and piracy are reduced significantly. Implementation of these laws would also promote growth and development in our country, considering that the fashion and textiles industry has a great impact on our economy. The sense of fashion is a subjective matter and formulating a legislation to determine copyright standards for designs would certainly be arduous, but would prove to be blessing for the fashion designers.
[1] Pranjal Shirwaikar, Fashion Copying and Design of the Law, 14 Journal of Intellectual Property Rights, 113-121 (2009)
[2]Kadian-Dodov, Bianka Gabriella, “Fashion Police: Intellectual Property in the Fashion Industry” (2013). Law School Student Scholarship. 252. https://scholarship.shu.edu/student_scholarship/252
[3] Anon, 2022. What impact do counterfeits have on the fashion industry? Red Points. Available at: https://www.redpoints.com/blog/fashion-counterfeit-impact/ [Accessed March 27, 2022].
[4]Dodoy, Gabriella Supra, note 2
[5] Gregory alexander & Eduardo Penalver, An Introduction to Property Theory 184 (2012)
[6] Oishika Banerji, Theories of protection of Intellectual Property Rights, ipleaders, Oct 24, 2021
[7] Gregory alexander & Eduardo Penalver, An Introduction to Property Theory 184 (2012)
[8] https://www.investopedia.com/terms/n/natural-law.asp#:~:text=The%20theory%20of%20natural%20law%20believes%20that%20our%20civil%20laws,not%20reflect%20the%20natural%20law.
[9]https://scholarship.shu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1252&context=student_scholarship
[10] Dalmia, V.P., 2015. Copyright law in India – intellectual property – india. Welcome to Mondaq. Available at: https://www.mondaq.com/india/licensing-syndication/406982/copyright-law-in-india?score=49 [Accessed March 27, 2022].
[11] Section 2(c), Copyright Act, 1957
[12] The Copyright Act, 1957,
[13] Zoya Mehta, 2021. Limitation of copyright law to protect fashion designs. iPleaders. Available at: https://blog.ipleaders.in/limitation-copyright-law-protect-fashion-designs/#:~:text=Fashion%20designs%20can%20be%20copyrighted,be%20protected%20through%20these%20laws.&text=In%20India%2C%20the%20Copyright%20Act%2C%201957%20doesn’t,make%20registration%20of%20artwork%20mandatory. [Accessed March 27, 2022].
[14] MEHTA, W.by R.E.S.H.A.M. et al., 2020. Fashion industry and IPR dilemma. Available at: http://baskaranslegal.com/blog/2020/07/06/fashion-industry-and-ipr-dilemma/ [Accessed March 26, 2022].
[15] The Copyright Act, 1957, S. 15
[16] The Copyright Act, 1957, S. 15(2)
[17]Ritika Private Limited vs Biba Apparels Private Limited, CS (OS) No. 182/2011, The High Court of Delhi
[18] Sadhvi C. Kanth, 2016. Law Mantra, 4(1 and 2).
[19] 2009 40 PTC 519 Del DB
[20] Anon, What is a patent?- definition & overview. IPExcel. Available at: https://ipexcel.com/in/what-is-a-patent.html [Accessed March 27, 2022].
[21] Dubey, Y., 2022. The role of IPR in Fashion Industry. International Journal for Research in Applied Science and Engineering Technology, 10(1), pp.1554–1556.
[22] Id.
[23] [2017] EWCA Civ 199
[24] Court, P., 2016. Stretchline Intellectual Properties Ltd v H&M hennes & mauritz UK ltd (no. 3). OUP Academic. Available at: https://academic.oup.com/rpc/article-abstract/133/8/587/2410725?redirectedFrom=fulltext [Accessed March 27, 2022].
[25] https://www.wipo.int/trademarks/en/
[26]https://drexel.edu/~/media/Files/law/law%20review/v12-1/Santoro%2012%20Drexel%20L%20Rev%20171.ashx
[27] No. 11-3303 (2d Cir. 2013)
[28] Anon, 2021. Cases of interest: Christian Louboutin v. Yves Saint Laurent. The Fashion Law. Available at: https://www.thefashionlaw.com/resource-center/cases-of-interest-christian-louboutin-v-yves-saint-laurent/ [Accessed March 27, 2022].
[29] Supra, note 2
[30] Barry Samaha and Shelby Ying Hyde, 2021. The best coco chanel quotes about fashion, love, and success. Harper’s BAZAAR. Available at: https://www.harpersbazaar.com/fashion/designers/g32971271/best-coco-chanel-quotes/ [Accessed March 27, 2022].