- Arwa Hussain and Mohammad Anas Dhorajiwala
INTRODUCTION
Fashion law includes intellectual property rights such as trade design, trademark, copyright, and so on. But as the technology has developed, fashion law has begun to be acknowledged as a separate area of the law besides intellectual property rights (IPR) along with arbitration, labour law, contracts, IPR, and other legal concerns.
A key element of the fashion business is dynamism. It is continuously evolving, creating new trends as well as new artistic creations. In order to succeed, every fashion firm produces a lot of products each year. The lengthy registration processes under numerous legislations, including the IP Act, Design Act, and Copyright Act, act as a hindrance. Without a valid and legal registration, no protection is provided.
The fashion industry is dealing with a serious problem where the original design is taken but the patterns and clothing have been altered, giving the impression that the work was original and not copied.
FASHION LAWS IN INDIA
India is one of the world's largest textile producers. The garment market is about 74 billion dollars in domestic consumption and US$ 44.4 billion in exports[1]. Since the beginning of the 21st century, the fashion industry has seen significant growth as designers seek to be the best. When it comes to fashion, India offers it all—from original and creative ideas to the labour force and raw materials required to make those ideas a reality.
The Geographical Indications of Goods Act(1999), the Designs Act (2000), and the Copyright Act (1957) make up India's legal system for safeguarding an intellectual property The Copyright Act (1957) protects the artistic expressions depicted in conceptual designs. According to the Design Act (2000), an object's pattern, structure, form, line and colour scheme are all protected even if they have no functional use[2]. The Design Rules, 2001 states that an application must be made to the government in order to register the design that contains a detailed list of products and commodities[3]. Design rights will be valid for years, with a five-year extension available provided specific requirements are satisfied. [4]
PROBLEM OF COUNTERFEITING
The fashion industry is as fiercely competitive as any other. The fashion house may lose an entire season if a design is copied since then customers would buy the knockoffs because they would be inexpensive. Considering fashion significantly depends on the ingenuity of its designers, the business safeguards ideas and originality. A valuable creative concept can be stolen, costing the original fashion business perhaps huge amounts of money. All over the globe people purchase counterfeit goods, which are produced when intellectual property rights such as trademarks or copyrights
are violated. The fashion industry's use of intellectual property rights trips is generally considered to be one of the most critical components of how the sector operates, particularly in the luxury fashion sector.
Copyrights, trade secrets, trademarks and patents are the four different categories of intangibles that the US government refers to as intellectual property, together.[5] It is trademark theft when counterfeits are produced because counterfeits mimic the logo and seek to sell products that are not from the genuine fashion brand.
The majority of IP rights are allegedly violated in the United States due to the sale of counterfeit products. Another significant global fashion hub is New York. As can be seen from the graph above, Italy, one of the major fashion hubs of the globe, is ranked second among the nations most affected by the traffic in fake products. Numerous well-known Italian firms have distinctive logos that have been registered as trademarks to indicate that they are uniquely that brand. The fact that counterfeiting mostly affects developed nations suggests that these nations are not addressing the problem of counterfeit product selling seriously.
According to a survey from Ghost Data, Instagram is a hub for the sale and purchase of counterfeit clothing. The company's survey found that approximately 20% of all Instagram postings regarding apparels include fake goods, the most often imitated fashion brands are Louis Vuitton, Nike, Gucci, Balenciaga, Chanel, and Fendi. In comparison to the study's 2016 research, which turned up only 20,000 accounts, almost 50,000 accounts were found to be advertising fake goods, a 171% increase. [6]
The 2018 Global Brand Counterfeiting Report indicates online counterfeits alone cost high-end fashion companies $30.3 billion in lost revenue. Not only may the sale of counterfeit items by these enterprises affect their brand and financial status, but counterfeit goods have also been connected to financing terrorist organizations and other illegal activities.
JUDGEMENT OF COLGATE PALMOLIVE CO. V. ANCHOR HEALTH AND BEAUTY CARE PVT LTD[7]
The Delhi High Court amplified the importance of trade dress in establishing a product's origin and the necessity for its protection to prevent consumer misunderstanding. Although the two parties' respective marks, Anchor and Colgate, were completely dissimilar from one another, the plaintiff in this passing-off lawsuit asked for an interim injunction against the defendant's use of the trade dress and colour scheme of red and white in relation to identical products (tooth powder). The court found that a consumer's overall view of the items' origin and source is based on the visual impression created by the colour scheme, container design, packing, etc. It constitutes to passing off if the uninformed and ignorant consumer is misled about the origin and source of the products that they have been using for a prolonged duration of time by having the items delivered in a package with a certain shape, colour scheme, and attire.
CONCLUSION
In the fashion business, safeguarding intellectual property involves work being done, but it all starts with the creator's intention; a deliberate and strong claim made early on will simplify the process and make it more efficient to enforce rights. A substantial amount of the fashion business is reliant on the copyright protection inherent in the works of creators.
Businesses suffer from a lack of IPR protection in a variety of ways. In the fashion sector, where reputation is important, the problem extends beyond the immediate loss of income. We have already seen the detrimental financial consequences that counterfeit products may have on a brand's sales, but we must not lose sight of the fact that a fashion label distinguishes itself from the competitors through its trademark and image. They should be safeguarded since they are the most valuable assets.
In conclusion, we can state that strict actions are required to eliminate the counterfeiting issue, and the people must be made aware of the negative consequences, such as the loss of revenue to fashion firms will result in unemployment, and there will be a loss in GDP because some people use the money from the sale of counterfeit goods for illegal purposes such as terrorism. It is necessary to preserve fashion firms' intellectual property in order to give them a motivation to create fantastic designs without fear of their ingenuity and brand name being stolen by counterfeiters.
Arwa Hussain and Mohammad Anas Dhorajiwala are second year students of Pravin Gandhi College of Law, Mumbai.
( Arwa.hussain1@outlook.com and anas.llm@icloud.com )
[1]“Indian Textiles and Apparel Industry Analysis Presentation.” IBEF, https://www.ibef.org/industry/indian-textiles-and-apparel-industry-analysis-presentation. Accessed 25 December 2022. [2] Section 2(d) of the Design Act [3] Schedule 3 of the Design Rul, 2001 [4] Section 11 of the Design Act [5] US embassy 2005 [6] Ghost Data. Instagram and counterfeiting in 2019: new features, old problems. Rome nd New York, 9 April 2019. [7] 003 VIII AD Delhi 228, 108 (2003) DLT 51, 2003 (27) PTC 478 Del, 2004 (1) RAJ 214
[8] Chavie Lieber, Instagram has a counterfeit fashion problem, Vox, May 2 2019, https://www.vox.com/the-goods/2019/5/2/18527181/instagram-counterfeit-industry-chanel-gucci
-louis-vuitton, accessed on 19th June 2019
[9] Forever 21 Inc v. Gucci America, United States District Court, Central District of California, Case No. CV-17 4706 FMO, Forever 21, Inc. v. Gucci America, Inc., et al., 2:17-cv-04706 (C.D.Cal).
[10] Forever 21 throttled in Gucci case, Fashion Law Institute,
https://fashionlawinstitute.com/cutting-edge-articles/forever-21-throttled-gucci-case, accessed on 19th June 2019
[11] Gucci won a battle against Forever 21 in a war over stripes, 11th August 2017, Fast Company,
//www.fastcompany.com/40493501/gucci-won-legal-battle-against-forever-21-in-war-over-its-str ipes-trademark – case, accessed on 19th June 2019
[12] RK Dewan & Co, Colour as a Trademark, Lexology, September 7 2013, https://www.lexology.com/library/detail.aspx?g=ad98d94d-fc71-41ec-9594-f76a7faa74bb, accessed on 20th June 2019