- Janvi Gala and Jaini Gala
“Style is a way to say who you are without having to speak”
~Rachel Zoe
INTRODUCTION
Have you ever met a woman who does not like GUCCI bags and lehengas made by Manish Malhotra or Sabyasachi Mukherjee? Have you ever seen a man who does not like super cool Rolex watches and stylish loafers? Certainly, not. People in today's world tend to flaunt their sense of style by purchasing items from various brand names. Since this effort is financially constrained, contraband and duplicates of the real works are used instead.[1] With the development of businesses and local fashion designers, fashion awareness is increasing.[2] Fashion design is a kind of creativity produced by designers. The Indian fashion industry is thriving all over the world. Young people today are developing their brands i.e., small businesses with innovative ideas which tend to attract this generation by setting new trends and genres.
FASHION AND IPR
In 2021, fashion has evolved into a sort of art that goes beyond the simple process of creating clothing and acts as a forum for cultural commentary. Fashion designers and artists showcase their artistic talents through conceptual fashion shows and apparel collections. Intellectual property rights are important in the fashion industry as artists, textile manufacturers, apparel companies, and designers all produce pieces of human intellect. In several nations, design acts are used to protect patterns or designs that are made to be stitched or imprinted on textiles [3]. The demands of the fashion industry, such as the need to protect their intellectual property, must be taken into account by fashion designers. The fashion business is a highly IP-intensive sector that constantly creates and markets new concepts and innovations. Plagiarism or product piracy, knockoffs, and counterfeit are generally applied in the fashion industry.
It is essential for the owner to use IPR to safeguard their original work in these two types of situations. The Design Act [4], the Copyright Act [5], the Trademark Act [6], and the Patent Act are a few of the Acts that were introduced to protect these works.
Trademark
Trademarks are words, phrases, symbols, or designs associated with products or services that are used to distinguish them from similar products and services in the market. A name and logo will always be used to identify any good or service to set it apart from similar goods. Trade dress, refers to the overall element of the product. Burberry holds trademark rights in both the trademark "Burberry" and the Burberry check pattern. Louis Vuitton uses its 'LV' mark which is a logo as a part of the design.7
Copyrights
Original artistic works are protected by copyright. The aspect of IPR known as copyright offers protection for published and used creative, literary, and aesthetic works online. The Copyright Act of 1957 in India explicitly states that it is protected for the period of the artist's life and for 60 years after he passes away. Marc Jacobs was accused of stealing work by amateur Swedish artist Gösta Olofsson in February 2008. The dispute was ultimately resolved out of court when Jacobs provided Gösta Olofsson's son with financial compensation. [7]
Patents
New inventions and innovations relating to technical aspects, substances or materials, or designs require patent protection. Patents are necessary for the effective commercialization of inventions, especially those requiring big economic outlays to bring them from the development stage to the commercial stage.
Trade Secrets
It refers to the central concept of fashion by using software tools for fashion design, computer-implemented, software-based business models, and logistics management of the entire value chain. A business concern can regulate its market share, profit margins, differentiation, and innovation through the protection of information by IP, aiming for a well-established market position and minimizing the risk of IP 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.
CASE
Puma and Gucci/Adidas v. Forever 21[8]
Puma filed suit against Forever 21 for alleged infringement of its intellectual property rights in a line of designer footwear known as the "Fenty" shoes. Since 2014, Puma collaborated with music artist Rihanna to design and market women's clothing and footwear, who served as the ambassador of the Fenty line. Its causes of action included: (1) design patent infringement; (2) federal trade dress infringement; (3) copyright infringement; (4) federal false designation of origin and unfair competition; and (5) state unfair competition. Forever 21 filed its motion to dismiss Puma's complaint in its entirety under The Federal Rule of Civil Procedure 12(b)(6). The Court denied Forever 21's motion to dismiss for design patent infringement. However, the Court dismissed the claims for trade dress infringement, copyright infringement, false designation of origin and unfair competition under the Lanham Act, and action for violation of the UCL, all with leave to amend.
CONCLUSION
Indian streets and markets are well-known among those looking for rich designs at reasonable prices, which are the first replicas of well-known designs. Despite several laws intended to prevent unauthorised imitations, piracy and other illegal activities violate intellectual property. India still lags in the correlation between fashion and intellectual property rights. Fashion piracy is on the rise these days Therefore, there is a need among fashion designers to protect their creations and encourage originality. It has been noticed that designers generally fail in enforcing the legal rights of their intellectual property. In both Ritika Apparels Case [9] and People Tree Case [10] the defendants got away with copyright infringement due to a lack of protection. The easiest strategy to stop others from copying the design of fashion items with a long shelf life may be protected with the help of IP.
Jaini Gala and Janvi Gala are third year students of Pravin Gandhi College of Law, Mumbai.
REFERENCES
Grail Research, The Global Fashion Industry – Growth in Emerging Markets (Research Report), YUMPU (2009), https://www.yumpu.com/en/document/view/5778119/the-global-fashion-industry-grail-research
The Designs Act, 2002, No. 16, Acts of Parliament, 2000 (India)
The Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India)
The Trade Marks Act, 1999, No. 44, Acts of Parliament, 1999 (India)
Puma SE v. Forever 21, Inc. - No. CV17-2523 PSG Ex, 2017 U.S. Dist. LEXIS 211140 (C.D. Cal. June 29, 2017)
Ritika Private Limited v. Biba Apparels Private Limited, (2016) 230 DLT 109
Christian Dior Pays Up After Copying Indian Designer’s Original Print