PGCL Moot Court Society
FASHION AND IPR
Updated: Nov 9, 2021
- Khushi Birla
“In order to be irreplaceable, one must always be different.”
The textile and apparel industry are a multibillion-dollar global business. Being one of the oldest industries, it has been present for generations and has seen many changes. Nevertheless, society has only recently started to acknowledge it as an art form. The capacity to build and commercialize a distinct brand through valuable assets like unique branding elements, prints, patterns, and proprietary design standards is a vital component of the fashion industry. Fashion is not only about clothes; it also encompasses a wide range of high-end goods and services. Every year, the fashion hub invests a huge chunk of money in creating a new collection of designs. These must be safeguarded and governed by a competent legal forum. Intellectual Property Rights (IPR) help in safeguarding the creator’s rights against the use of their design’s print, aesthetic characteristics, or product features.
Relevance of IPR in the Fashion Industry
Inventions, literary and artistic works, designs and symbols, names, and pictures used in business are all examples of intellectual property (IP). It is generally viewed as the right to profit exclusively, for a limited period, off of something you have created. In the current day and age where clothes and designs from catwalks are copied instantly and reproduced for sale in boutiques and sidewalks in a matter of hours, IPR is being used by designers and fashion businesses to safeguard the products of their hard work and creativity.
Laws Governing IP and the Fashion Industry
Fashion law is a new legal specialty that deals with all aspects of a garment's life cycle, from creation to brand protection. Susan Scafidi, a United States law professor, was the first to offer a course in fashion law in 2008, since then, it has been acknowledged as a unique field within the legal arena. A lot of American as well as European institutions have programmes dedicated to fashion law. The English and French Copyright systems, which protect fashion designs, are the roots of copyright extensions. On the other hand, the patent law was not designed to protect fashion and its culture.
In India, The Copyright Act, the Trade Marks Act, the Designs Act, and the Geographical Indication of Goods Act regulate fashion and safeguard creators' rights. The Copyright Act protects the artistic effort of design sketches once they've been turned into a tangible medium. The Designs Act allows for the protection of non-functional components of a product that have visual appeal, such as shape, pattern, the composition of lines or colours, etc. The GI Act of 1999, which recognizes India's variety in traditional knowledge and other indigenous art forms, preserves traditional knowledge and other indigenous art forms within the existing regime.
A trademark is used to distinguish one party's products from those of another. Trademarks are words, phrases, logos, and symbols that manufacturers use to identify their products. It includes shapes, sounds, scents, and colours as well. Trademark law also extends to trade dress, i.e., the whole image of the product and its overall presentation. High-end fashion designers have proven that the value of a thing lies in its source, rather than its intrinsic value, by making their goods instantly identifiable. For example, Christian Louboutin obtained a trademark for his iconic red-lacquered soled high heels, and Burberry holds trademark rights in both the name "Burberry" and the Burberry check pattern.
Under copyright law, an artist has the right to safeguard their literary and artistic work, even if it has already been published and used. The copyright law does not protect the cut, silhouette, or shape of a dress. In India, copyright protection exists for a period of the lifetime of the artist and an additional 60 years after he passes away. While in other countries, the protection period varies from 50 to 100 years after the owner’s death. In 2017, following in the footsteps of a famous fashion designer Rohit Bal, who had his whole collection copyrighted, various other designers such as Anita Dongre and Anju Modi followed suit.
A patent grants an inventor the exclusive right to create, use, and sell an invention for a set period. Patent protection is required for any new invention, technical innovation, fabric or material, or design. It can also be used to protect major improvements on previously invented things. A technique for treating "stone-washed" denim jeans was developed and patented by Novozymes, a Danish biotech company. The technology removes some of the indigo dye from the denim, giving it a worn appearance.
It refers to the central concepts of fashion design employing software tools, software-based business structures, and value chain logistics management. A corporation may strive for a strong market position and control profit margins, innovation, and other aspects by safeguarding information and reducing the danger of intellectual property infringement. For example, Zara used an innovative information technology system to reduce its manufacturing cycle to just 30 days, whereas its competitors' cycles varied from 4 to 12 months.
IPR is the cornerstone for securing your concept and idea, whether you're in the fashion sector or not. However, the current condition of IPR (vis-à-vis fashion) has been described as an unusual disconnection with copyright law and a ‘bizarre blindness towards the inherent artistry and creativity.’ Fashion design piracy and knockoffs, which are rampant across the industry, are threatening its progress. The ambiguous nature of IP laws makes it difficult to claim exclusivity and leaves the system unintentionally open, and a lot of times designers fail to protect their IP using the legal route. In both, the Ritika Apparels Case, as well as the People Tree Case, the defendants got away with copyright infringement due to lack of sufficient protection. Although fashion has been present for centuries and is regarded as a creative field, it is not afforded the same level of legal protection as intellectual property. In the current cutthroat commercial environment, there is a need for improved IP Laws since they can help increase revenue and give the fashion industry a competitive advantage allowing for more innovation and creative expression.
Khushi Birla is a third year student at Pravin Gandhi College of Law, Mumbai.
 Intellectual Property 101: A Primer, The Fashion Law, https://www.thefashionlaw.com/intellectual-property-rights-a-primer/.
 WIPO, https://www.wipo.int/about-ip/en/
 The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).  The Trade Marks Act, 1999, No. 44, Acts of Parliament, 1999 (India).  The Designs Act, 2002, No. 16, Acts of Parliament, 2000 (India).  The Geographical Indications of Goods (Registration and Protection) Act, 1999, No.48, Acts of Parliament, 1999 (India).  Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc., 696 F.3d 206 (2d Cir. 2012) (Christian Louboutin obtained a trademark for the red-lacquered soles of his shoes in 1992. The Second Circuit Court of appeals recently upheld that this mark is also a distinctive symbol that identifies the Louboutin brand.).  The Copyright Act, 1957 § 22.
 IP and Business: Intellectual Property in the Fashion Industry, Issue 3 WIPO MAGAZINE, (2005) https://www.wipo.int/wipo_magazine/en/2005/03/article_0009.html.  Pranjal Shirwaikar, Fashion Copying and Design of the Law, 14 J INTELLEC PROP RIGHTS, 113, 114 (2009), http://nopr.niscair.res.in/bitstream/123456789/3390/1/JIPR%2014(2)%20113-121.pdf.  Ritika Private Limited v. Biba Apparels Private Limited, (2016) 230 DLT 109. (Indian fashion label Ritu Kumar was denied design protection, and the right to enforce its copyright in the design's original drawing because they reproduced a design on its apparel more than 50 times).  Christian Dior Pays Up After Copying Indian Designer’s Original Print, The Fashion Law, (July 31, 2021, 11:15 PM) https://www.thefashionlaw.com/christian-dior-pays-up-after-copying-indian-designers-original-print/.