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  • PGCL Moot Court Society

FASHION AND IPR


- Anshika Shrivastava


Introduction


Fashion has long served as a platform for the display of artistic concepts, emotions, and forms of self-expression, with creative inspiration driving new trends and aesthetics. Fashion is not enduring and regularly changes because of the developing spirit of the world. People update their wardrobes in accordance with their mood and the event, making fashion an element of distinctiveness. Fashion extends beyond just clothing, it includes a wide range of elevated products (jewellery, styling, make-up, footwear) and services. Every time something new appears, it is usually followed by duplicates, prompting the necessity for original work protection. A valuable creative idea may be stolen, costing the original fashion house millions. It is crucial for fashion designers to safeguard their work against infringement. The intellectual property rights become essential in this situation. Intellectual property rights are the exclusive rights granted to the owner of a unique creation for a predetermined amount of time. There are three different kinds of intellectual property rights that are available and have proven to be quite helpful for the clothing sector. Patents, trademarks, and copyrights are examples of intellectual property rights.


Fashion and Law


When an author sets a work in a tangible form of expression, copyright, a sort of intellectual property, preserves the original authorship of that work. This makes it possible for the work to only be recreated by the original creators and those to whom they provide authorization. It is governed by the Copyright Act of 1957. All literary, artistic, and creative works are protected by copyright. Section 2(c) of the Copyright Act of 1957 provides protection for the artistic design work[1]. According to Section 11 of The Designs Act of 2000[2], the owner of a registered design has a right to obtain a copyright for that particular design for a period of ten years following the date of registration. The original ten-year tenure may, however, be extended for an additional five years starting from the date of the original tenure's expiration. Under the Copyright Act of 1952, any creative work may receive protection for a term of 60 years. In the fashion industry, an artist's work is highly revered, and the artist is compensated for his work. However, in the case of the fashion sector, only the artistic design or architecture may be protected by this law; not the apparel, footwear, or any other items associated with the fashion industry[3]. In the case of Ritika Private Limited v. Biba Apparels[4], Ms. Ritu Kumar suffered financial loss since a fashion firm copied designs from one fashion house and used them in their own products. Section 15(2) of copyright act which states that if a creation that qualifies for design law protection has not been registered with the design authorities and has been copied more than fifty times, the copyright in the same product will be deemed to be permanently lost, has a loophole that allowed BIBA to get away with it.

Trademarks are identified such as signs, symbols, logos, and markings that aid in separating one brand from another. It prevents the occurrence of "probability of confusion" in the consumers' minds. Every product is identified by its brand. According to Section 2(zb) of the Trademark Act of 1999[5], a trademark is anything that can be graphically expressed and used to differentiate one person's goods and services from those of another. This includes product shapes, packaging designs, and colour schemes. The protection of a brand's name, logo, image, style, and other distinguishing characteristics of fashion apparel is another reason why trademarks are crucial in the fashion business. A person's immediate association with a brand is with the style, pattern, or logo of that brand's merchandise. Trademarks play a key role in fashion companies in forming close relations with their customers. These products are typically recognised by consumers by the name of the designer, such as a tick mark of Nike, Jaguar of PUMA, Gucci or Dior. Designers seek trademark protection for these names and goods as the customers buy them because of the brand and reputation fixed to them. A trademark need not be obvious on the actual piece of clothing. Other options to display it includes the buttons, the rear, or a small "mark" on the inside or back. Section 25 of the Trademark Act of 1999 states that a trademark is protected for a period of ten years following the date of application.

A patent is a new invention that entails innovative manufacturing techniques for products like leather, textiles, and other materials. In general, technological discoveries that are wholly original, innovative in concept, and a non-obvious development are covered by patents. New innovations that are implemented into products are protected by patents. The technology utilised to create CROCS shoes, wrinkle-free fabrics, UV-filtering fire-resistant textiles, and water-repellent textiles are a few examples of patents. Nevertheless, the fashion business does not use patent law very frequently. A patent registration is a time-intensive and costly process. The fashion industry has little value in this sector because it is so volatile. According to Section 53 of the Patents Act of 1970, patent protection and the acquisition of patentable rights are valid for 20 years from the date of application filing[6].


TRIPS AGREEMENT


IPR protection in circumstances of cross-border/international infringement is significantly hampered by the territorial nature of IPRs. However, it is crucial to highlight that the World Intellectual Property Organization (WIPO) and other international institutions tasked with establishing the same have developed various international treaties to alleviate this predicament. One of them is Trade-Related Aspects of Intellectual Property Rights Agreement (“TRIPS Agreement”)[7], TRIPS entered into force in 1995 as a component of the deal that created the World Trade Organization (WTO). In terms of intellectual property, it applies fundamental international trade norms to the member states. All WTO members must abide by it. The TRIPS Agreement specifies the permitted exceptions and restrictions for striking a balance between the interests of intellectual property and those of public health and economic development. Regarding industrial designs, Article 26(1) of the Agreement mandates that member states grant the owner of a protected industrial design the right to prevent third parties without their permission from making, selling, or importing goods bearing or embodying their own design (the protected design), when such acts are carried out for commercial gain. The Agreement further stipulates that the protection period must last at least 10 years. It is not necessary for a signatory state to domesticate the Agreement before its citizens in other nations that are party to it can be entitled for its benefits.


Conclusion


To sum up, the foundation of the fashion industry is intellectual property rights, it is crucial that IP creators keep an eye out and put in the necessary effort to secure proper protection for their creations. To preserve intellectual property in the fashion business, the government and the legislation must take into account the recent phenomenon of copying and the need for greater security.



Anshika Shrivastava is third year student of Pravin Gandhi College of Law, Mumbai.


[1] https://copyright.gov.in/documents/copyrightrules1957.pdf [2] https://ipindia.gov.in/designs-act-2000.htm [3] https://www.ijraset.com/research-paper/role-of-ipr-in-fashion-industry#_ftn10 [4] Ritika Private Limited v. Biba Apparels Private Limited, 2016 SCC OnLine Del 1979 [5] https://www.indiacode.nic.in/handle/123456789/1993?sam_handle=123456789/1362 [6] https://ipindia.gov.in/writereaddata/Portal/IPOAct/1_31_1_patent-act-1970-11march2015.pdf [7] https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm

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