PGCL Moot Court Society
FASHION’S LEGAL FABRICS: A GUIDE TO IP IN THE INDUSTRY
- Risha Patel & Ansh Sharma
Creations of the brain are called Intellect, and when these creations have commercial use, they become property. Since they belong to individuals, these creations then become their rights thus coined as Intellectual Property Rights (IPR). IPRs are regarded to be conceptions, inventions, and artistic expressions that the market is ready to confer the status of the property to. Intellectual property law governs IPR, which guarantees certain exclusive rights to the invention's inventors or creators so they can profit commercially from their creative endeavors or reputation. Every country must have significant laws to safeguard the creations of its citizens.
Depending on its field of specialization, each industry has its own IPR policies, management structure, strategy, and so forth. One industry where an artist's work is highly valued and where the artist is rewarded for their efforts is the fashion industry. Therefore, it is imperative that the artist's creation be safeguarded, and as a result, the work should be covered by IPR legislation.
With the technological advancements in the twenty-first century, IP rights are constantly changing. Nowadays IP rights are evolving and working on par with the fashion industry. The fashion industry is constantly emerging and developing new trends with a market capitalisation of 500 billion dollars worldwide. Because of this reason, it is very important to protect the IP rights that are associated with the fashion industry, since it is innovative in nature and is not restricted to fashion wear only, but also includes a range of high-end services.
IN THE FASHION INDUSTRY - COPYRIGHT, PATENTS & TRADEMARKS
The ability to copy something legally is known as copyright. All literary, artistic, and creative works are protected by copyright. Section 2(c) of the Copyright Act of 1957 provides protection for artistic design work. It could be a sculpture, a painting, a drawing, or any other work of art. It protects works that are distinctive in some way. It grants 10 years of copyright protection beginning on the date of registration for the design.
A patent portfolio may represent technical excellence in creating novel, timeless fabrics. Investors and business partners are lured to this. Even while patenting ideas is costly and time-consuming, if the idea is novel and the process can be repeated annually, it may be possible to safeguard an innovation that can be used in the fashion for an extended period of time and will not become outdated. Nevertheless, in the case of the fashion sector, only artistic design or architecture may be protected under this law; clothing, footwear, or any other items connected to the fashion market cannot be protected under this law.
Any expression or combination of colours that are used to distinguish and identify goods in commerce is considered a trademark.
HOW IP IS HELPING IN BOOSTING A BRAND'S REPUTATION?
Large fashion companies are giving their brand equity a lot of consideration. Discovering, creating, and registering intellectual property rights are crucial steps. It is vital to register intellectual property because, in today's world of counterfeit goods, everyone wants to gain a competitive advantage by using low-cost techniques like duplication. The long-term growth of the business is facilitated by investing in the development of intellectual property. Additionally, it increases the brand's global and online recognition, fame, profitability, and overall growth.
What is Fashion Piracy?
One of the most prevalent practices in the industry is fashion piracy. It comprises producing an imitation of a fashion designer's original creation or illegally copying their original work. Two types of fashion design piracy are recognised:
A copycat or a replica of an original fashion creation that differs slightly and is sold under a different brand at a price lower than that of the creator. This is not illegal because it is not an attempt to pass off a legitimate product; even so, legal action may be taken if someone can prove that the similarity is dangerously close to fraud.
An exact replication or imitation of an original product marketed as a counterfeit item with a price that is intentionally lower than the original in order to violate the original designer's trademark.
The government and designers such as Chanel have invested millions of dollars in legal actions to limit the sale of counterfeit goods.
Puma v. Forever 21
With the aforementioned case in mind, the lawsuit that Puma filed against Forever 21 in early April is significant. Reports showed Forever 21 is offering lookalike versions of footwear from Rihanna's Fenty line with Puma, a German sportswear giant, who slappedthe copycat retailer with a design patent, trade dress, and copyright infringement lawsuit.
According to Puma's suit, filed in the U.S. District Court for the Central District of California, the Los Angeles-based fast fashion brand had copied three of the most prominent footwear designs from the Rihanna collection for Puma in attempts to “trade on the substantial goodwill of Puma, Rihanna, and the Fenty shoes.”
This case is notable because it was one of the first cases to use the U. S. Supreme Court's new separability test and made it interesting and enlightening as it showed how the Courts which handle a significant number of similar cases, apply it.
Adidas America Inc. v. Payless Shoe Source Inc.
The famous 3-Stripes is protected by Adidas as a registered trademark. In 1994, Adidas sued Payless over these same stripes. Adidas has been using the Three Stripes design since 1952.
Confusingly, Payless started selling almost identical athletic shoes, but using two and/or four parallel stripes. Initially, the two companies settled, but Payless's resumption of shoe sales in 2001 caused a split between the two. Fearing that customers might be tricked into buying the same shoes from a competitor, Adidas decided to seek a jury trial.
The trial went on for sevenyears, and a total of 268 pairs of Payless shoes were examined. In the end, Adidas emerged victorious and received $305 million, which equated to approximately $100 million per stripe. Adidas also sued other brands over these stripes, but ultimately lost their intellectual property battle after the European Union discovered the intellectual property was no longer unique.
It is evident that IPR is essential to the fashion industry. IPR contributes to preserving its creativity, innovation, as well as the financial interests of those involved in the industry by safeguarding designers' creations through the use of patents and trademarks as well as by ensuring that fashion brands have complete control over the distribution and marketing of their products. It's also critical to understand that IPR may be a complicated and disputed arena where numerous parties contend for ownership of various forms of intellectual property. As a result, it is crucial for anyone working in the apparel industry to be aware of the plethora of IPR laws and regulations that are relevant to their work and to obtain legal counsel as necessary to safeguard their own rights or resolve conflicts. In order to encourage innovation and originality and to make sure that the efforts and reputation of experts are appropriately acknowledged and rewarded, it is imperative for the fashion industry to effectively manage and protect its IPR.
Risha Patel and Ansh Sharma are Second Year Students of Pravin Gandhi College of Law, Mumbai.