PGCL Moot Court Society
Fashion and Intellectual Property: Protecting Artistic Works
- Mansi Barodia
“Fashion goes with the feeling of the moment. It’s related to movies, to art, to young people’s taste”
- Gianni Versace
Meaning of intellectual property
Intellectual property (IP) is an intangible property created by human intellect. It includes creations of the mind or the products of human intellect such as inventions, designs, literary and creative works, symbols, names and images used in commerce. The “Convention Establishing the World Intellectual Property Organisation” states that “Intellectual Property” shall include the rights relating to: —
1. Artistic and scientific works,
2. Performances of artists
3. Inventions in all fields of human endeavour,
4. Scientific discoveries,
5. Industrial designs and
6. All rights resulting from intellectual activity in the industrial, literary, or artistic fields.
What are Intellectual Property rights?
The rights connected to intangible property that is owned by a person or business and is prohibited from being used without permission are known as intellectual property rights (IPRs). So-called intellectual property rights are those that pertain to the ownership of intellectual property. By allowing the producers of trademarks, patents, or works protected by copyright to profit from their works, these rights seek to protect intellectual property.
With the development of technology in the twenty-first century, intellectual property rights are continually changing. With a global market value of 500 billion dollars and the constant development of new trends, it is imperative to secure the IP rights pertaining to the fashion business. All of these items, including the Louis Vuitton handbags, Michael Kors bags, Gucci perfumes, and Nike shoes, are the results of intellectual originality and talent employed in the fashion sector. Nobody contests the enormous contribution that intellectual capital makes to the development and promotion of goods in the fashion sector, whether it be high fashion or ready-to-wear. The IP rights of these companies are heavily invested in.
The Indian fashion industry is expanding more rapidly than ever. Fashion designers have regularly complained about their designs being replicated without their consent as Fashion Weeks have expanded. Since this alleged piracy is hindering the expansion of this industry, it must be halted.
Relevance of Intellectual Property Rights in the Fashion Industry
IPR and fashion are interconnected. Innovative design techniques were used to produce the styles, which have become trends. Therefore, a person's intelligence plays a significant role in the creation of fashion, and laws are created to preserve those creations. The designers are granted the only right to profit financially from such inventions. By doing this, a nation can achieve economic progress while also ensuring that everyone is protected by various legal measures. The nation could miss out on economic progress if the rules do not safeguard inventiveness. The Trademark Act, Copyright Act, Designs Act, and Geographical Indication of Goods Act are a few of the regulations in India that strive to safeguard intellectual property rights relating to works produced by the fashion industry.
Types of intellectual property rights which are applicable in the fashion industry
The term "copyright" refers to the legal rights of the authors and creators of creative works. A copyright is frequently referred to as an "author's right" or a "literary privilege." An author is granted exclusive rights to his or her work through copyright, which also forbids unauthorized publishing and copying. A comprehensive piece of legislation governing copyrights in India is the Copyright Act, 1957. The instant a work is created and expressed in some concrete way, copyright protection kicks in. A work that is an original creation is given copyright protection. Additionally, only expressions are covered by the protection. Simple concepts that have no physical manifestation are not protected by law and are not covered by copyright.
What kind of works can be protected under copyright?
The following categories of works often come under copyright protection:
1. Literary creations including books, plays, poems, and newspaper articles;
2. Databases and computer programmes;
3. Films, musical compositions, and choreography;
4. Artistic creations such as photographs, paintings and sculptures;
5. Technical drawings, ads, and architectural designs.
A "trademark" is a mark that may be represented graphically and that can be used to differentiate the goods or services of one person from those of others, according to Section 2(zb) of the Trademarks Act, 1999. To distinguish one brand from another, use trademarked signs, symbols, logos, and markings. It avoids clients' "likelihood of confusion" problem. Every product is easily recognisable thanks to its brand. The brand conveys a lot without ever saying a word. The jaguar from the puma company and the tick from Nike both pose as trademarks. The sector most impacted by it is the fashion industry. Any trademarked brand that wants to be protected against imitation must be registered.
A person's innovation can only be patented if the process and other requirements outlined in the Patents Act of 1970 are adhered to. The inventive component of a design in the fashion business is protected under patent law. Two considerations must be made in order for a design to be patented. They are novel and distinctive. A design needs to be noble and distinctive. It was made for the first time because of its nature. The design must also be feasible from a scientific standpoint. However, the fashion business does not use patent law very frequently. The technology sector has a greater prevalence of them. A patent registration is an expensive and time-consuming process. The fashion industry has little value in this sector because it is so dynamic.
4. Designs in the fashion industry
A design in the fashion business is a plan or drawing that can be displayed visually to give a notion of the desired result. Design is the initial phase of a product, which could be either clothing or accessories. Before weaving fabric or producing a product, the makers make their designs in an original and inventive way. Therefore, getting the designs validated is crucial for a creator in order to produce the intended item of clothing or product. Designs are a key instrument for securing intellectual property (IP), as creativity is required to produce novel and distinctive designs, which must be registered to prevent competitors from copying the designer's original work. The original designer must register their designs in order to safeguard them from being easily duplicated by other competitors in the fashion industry if they are not registered. In some places, like the United Kingdom and the European Union, certain types of protection are provided without being registered. It is a benefit that is offered and is quite helpful for fashion firms and other players in the market.
A sector that is expanding and contributes to a nation's economic prosperity is the fashion industry. But it must also be acknowledged that safeguarding original works in the fashion industry must come first. Laws in many nations regulate their respective fashion businesses in various ways. The main objective of these rules is to prevent other competitors in the fashion industry from copying original, creative, and fashionable designs and products.
Mansi Barodia is third year student at Pravin Gandhi College of Law, Mumbai.