Fashion: An Analysis of Fashion Design Protection In Europe And India

Fashion Design Protection In Europe And India

Written by: Anubhav Seth

INTRODUCTION

Fashion is one of the businesses that is paving the way in terms of style and growth across all age groups all over the world; nevertheless, when it comes to technology and designs, they are made with a lot of hard work and require protection. The evolution of the relationship between Intellectual Property Rights and the Fashion World is a dynamic one that continues to evolve alongside advancements in many other industries that assist to boost Fashion around the world.

The tremendous economic growth and profits generated to demonstrate that this business needs stringent safeguards of the technologies and methodologies used to yield such a huge amount of money to survive, which is only possible if designers are granted absolute rights under the IP Law.

These are intended to grab the attention of the target audience, enabling the fashion industry to thrive and flourish. Fast fashion, which involves low-end designers duplicating high-end designs and manufacturing what is known as a “first copy” in the market, infringes on the designer’s rights while also jeopardizing the person’s goodwill and objective.

FASHION RELATED IP RESEARCH AND AFTER EFFECTS

Fashionable items are worth a billion dollars for fashion businesses, which is why they want to maintain their brand equity to maximize profits in the future. Such trendy items are designed by devoting a great amount of time and ingenuity to research, for such outfits and accessories to be absolutely unique to the customers’ eyes.

The number of Fashion Weeks held all across the world reflects how designs are elevating society’s standards of living. However, fashionable goods aren’t limited to clothing; they also extend to the sector of accessories and other lavish goods vital for a healthy lifestyle.

However, there is always a misuse of names and labels by different levels of manufacturers and sellers in a country, resulting in the production of duplicated or fraudulent goods and services using certain beautiful and exclusive brand names for sales and advertising. Naive and new consumers don’t research much before entering the market which often makes them land into a situation where they are very confused and even though, they’ve created by the trademark squatters who misuse the trademark of other brands for their sale.

Such acts with ulterior motives and erroneous identification lead to infringements and utterly worthless items, tarnishing the image of certain brands and tantamount to mismanagement. Fashion: a dazzling industry that thrives with the support of celebrities and models, is affected once embezzlement occurs, leading to public outrage and losses.

As a consequence, brands are particularly sensitive about their prestige, the reality of products with a specific worth, and the direct effects of how their new creative designs may be affected by consumers and street vendors selling counterfeits. Leading fashion businesses seize the trend by registering their designs and procedures under IP law instantaneously, and they usually adopt strategic measures to protect their sector.

A focus must always be there on mass awareness by, marketing, distribution, monitoring, controlling, using and promoting a fashion house’s trademark, which would always assist the consumers to decide what is authentic and why they would want to pay more for such original products rather than fake ones which would complement on their looks, style and ideas amongst their peers. Moreover, multiple strategies can be used also to keep the rich heritage shining on the peak without any endemic issues of either copying down or stealing ideas to stick on somewhere else.[1]

“A stitch in time saves nine” is a perfect expression to describe the protection that should be given to the brands to protect their brand value and image in the market through proper registration and upkeep of that protection system.

HOW IP PROTECTS THE FASHION INDUSTRY?

Fashion designers can safeguard their designs and brands in a variety of ways, including the following:

Protection through Trademark Laws

According to the World Intellectual Property Organization (WIPO) “A trademark is a sign capable of distinguishing the goods or services of one enterprise.[2] The exclusive owner of the goods or services linked with the registered mark is the proprietor of the registered mark, and that’s how a fashion brand in the fashion industry can safeguard its identity through trademarks. Since reputation is so crucial in the fashion industry, the company’s brand logo must be unique, so that it can be easily identified.

Examples:

Burberry owns the trademarks “Burberry” as well as the Burberry check pattern.

Louis Vuitton incorporates its ‘LV’ mark, which is a logo as part of the design.

Bettina Liano has registered the distinctive pocket stitching on her garments as a trademark.

Protection through Copyright Laws

The Copyright Law also allows a lot of room for protection. However, fashion being dependent on ‘inspiration,’ creating an authentic work that is not taken from anywhere would be challenging. Copyright merely protects the expression of an idea.

It can be sought in India under the Copyright Act of 1957 for the artist’s lifetime and an additional 60 years period after his death. It is fundamental in encouraging a creator and ensuring that his or her creativity or talent is not used illegally.

Example: Lady Gaga’s infamous “meat dress” was an expression that deserved to be copyrighted. Nobody has come up with the concept or put into practice wearing ‘meat’ to hide parts of the body.

Protection through Design Laws

Unlike trademarks, copyright laws offer protection to designs. To be protected under design, one does not need a well-known name or brand; all that is required is a meritorious piece of art. The procedure is analogous to that under Copyright law, however, a design comprises of 3D prints, patterns, and shapes.

Protection through Trade Dress

Trade dress refers to the product’s “whole image and look,” which can include colour, shape, size, texture, and sales technique. To get registered under trade dress one needs to be established and source identifier.

Examples:

Zara adopted an innovative information technology system to reduce its production cycle to just 30 days, whereas its competitors’ cycles varied from 4 to 12 months, and, a high-tech distribution system with over 400 chutes and 200 kilometres of underground traces to ensure that finished goods are dispatched and reach in stores within 48 hours.

Shirtsdotnet is a clothing platform that allows customers to design and order apparel straight from the company’s online store. To offer mass customization clothing solutions, proprietary software that has been protected as a trade secret has been used.

Protection through Patents

Design patents and utility patents are the two types of patent protection available. A design patent for a garment can be applied for if the dress is unique in terms of shape, colour, pattern, or overall look. To be eligible for a design patent, the product must be unique and have never been seen before.

A utility patent, on the other hand, is more difficult to obtain because it protects the functional use of goods. It is valid for the next 20 years from the date of the grant. Products eligible for a utility patent may also be eligible for a design patent, but it is exceedingly rare that a good eligible for a design patent will also be eligible for a utility patent. 

Examples:

Novozymes, a Danish biotech company, has developed a cellulose enzyme and microorganism for fabric protection. This has now been added to the global list of production method improvements.

The Suberis by GrindiSrl, an Italian company, is another remarkable fabric. This is primarily used in the production of clothes, footwear, and sportswear etc.

EUROPEAN SCENARIO

Europe is the epicentre of fashion specialists and the origin or source of fashionable items. Every year, the extraordinarily wild fashion weeks in Milan, London, Paris, Berlin, and Madrid gather the best crowd in the world for a shift in fashion trends launching new products and services.

The Royal Families have favoured exceptional fabrication since the 15th century, with the kings granting rights and privileges for cloth weaving. Those who couldn’t come up with new designs and would imitate the kings’ designs were punished.[3] Later, in the 17th century, laws were established by the Empires ruling over the states for the exclusive rights of designers and weavers for their works. The European Designers’ Community enforced their statutes with a Regulatory Body to monitor the degree of visualization of changes in design and pattern on fabrics over time.

Finally, the European Council established the Legal Protection of Design (a European Directive) in 1998. It established guidelines for determining owners eligible for protection. The owner is granted exclusive rights for a period of twenty-five years. This law protects both registered and unregistered designs. The initial set of rules and statutory advancements demonstrate a passion and dedication for preserving fashion’s existence for a longer period of time.

It also demonstrates how important it is for such innovative rules and laws to exist and be enacted for the protection of goods. Although in recent times, Europe is regarded as a heaven of simple and sober attire in all styles, it has been observed that brands have started a fierce rivalry to gain the trust of certain people based on region and quality that is traceable to origin.

As far as unregistered community designs are concerned, European designers provide an excellent option. This is obtained without any formalities by simply making the design public, and is valid for a maximum of three years. Since most designers are only interested in protection after being a victim of counterfeiting, the unregistered community design is a welcome alternative to more formal registration.

INDIAN SCENARIO

India’s fashion industry is valued at around US$ 120 billion, and to protect it from “theft,” the law acts as an armour and protects the rights of such individuals by granting them the right to enjoy their creation for a set period of time, and thus the significance of intellectual property rights in the economy cannot be underestimated.

However, there is a gap between the presence of such rights and their implementation in the actual world, which has culminated in the ubiquitous problem of people copying other people’s work rather than using their own skills. The piracy problem has risen swiftly in tandem with the fashion industry’s ever-changing trends, and can be described as the “tip of an iceberg” because only a handful of them are aware of the issues surrounding counterfeiting of their designs and the rights involved with it, but, the majority of people are still oblivious of the submerged part, which portrays the ramifications of plagiarizing work of such designers.  

A classic case of knockoffs in a fashion-intensive country like India is the renowned Sarojini Nagar Market, where such products are offered at a charge that cannot even be matched to that of the designer in practically every shop. Further, in a world that is so techno-friendly, numerous stores with replicable designs and at throwaway prices, are available at just a “one-click” of the consumer.

One of the most recent examples of counterfeiting is the Gucci and Forever 21 case[4], wherein Gucci brought a trademark infringement suit against Forever 21 for replicating their “stripes” design in their clothing.

In another case, that is Castrol India Limited &Ors. v. Iqbal Singh Chawla & Ors.[5], it was observed by the Delhi High Court that the design, colour scheme, style, and packaging of the container was deceptively similar to that of Castrol and refrained the defendants from using the mark “Active”.

THE FASHION INDUSTRY & INTELLECTUAL PROPERTY REGIME IN INDIA

  • Protection under the Designs Act, 2000

Industrial design is the ornamental or aesthetic element of a product and is regarded as one of the most important factors in product development. Consequently, while being the most effective strategy for protecting a fashion designer in the face of ever-increasing volumes of knock-offs and counterfeits, it is seldom employed in comparison to other available safeguards.

  • Protection under the Copyright Act, 1957

Copyright exists in original literary, dramatic, musical, and creative works, and when such an idea is developed into a concept, it becomes copyrightable. Another alternative for design protection is the Copyright Act of 1957, which protects designs that are registered or that are capable of being registered under the Designs Act of 2000. However, if we examine closely, it is evident that the Copyright Act and the Designs Act overlap, leading to a conflict between the two.

Protection under Copyright law is granted to a design only when it falls within the meaning of “artistic works” which refers to a painting, a sculpture, a drawing (including a diagram, map, chart, or plan), an engraving, or a photograph, whether or not any such work possesses an artistic quality, a [work of architecture] and any other work of artistic craftsmanship.

In Rajesh Masrani v. Tahiliani Design Pvt. Ltd.[6],the Court observed that the work was in fact entitled to be protected as per Section 2(c) of the Act by the virtue of being an “artistic work” and that because the design was artistic, it did not fall within the ambit of Section 2(d) of the Designs Act and therefore was not subject to the provisions of Section 15(2).

A design created from an original work of art, for industrial application on an article to produce an article which has features of shape, or configuration or pattern or ornament or composition of lines or colours and which appeals to the eye would also be entitled design protection in terms of the provisions of the Designs Act. As a result, if the design is registered under the Designs Act, it will lose its copyright protection under the Copyright Act, but the original painting will not.

If the design is capable of registration under the Designs Act but has not been registered, it will continue to enjoy copyright protection under the Act as long as the threshold limit of its application to an article by an industrial process for more than 50 times is met. However, once that limit is exceeded, copyright protection under the Copyright Act’s is lost. This interpretation would reconcile the Copyright and the Designs Acts in conformity with the legislative objective.

CONCLUSION & SUGGESTIONS

Designers in the European Union have two main sources of intellectual property protection for fashion designs: national copyright protection and design rights, which can be safeguarded either through the EU or through national design regimes. While a designer may opt to protect his or her designs under only one system, in the certain EU Member States, concurrent protection may be available if the design is covered under design rights and also meets the Member State’s copyright requirements.

Certain amendments need to be made to India’s current intellectual property system to make it more suitable for defending fashion design against piracy. Most importantly, the Designs Act of 2000 should incorporate a specific definition of “fashion design”. And, unlike the current definition under Section 2 (d) of the Act, which protects each part of an article of clothing individually, this definition would help the entire appearance and overall look of a specific piece of attire or article of clothing.

The term of protection and the life of the creation are two key differences between copyright and fashion design protection. If a designer files a lawsuit alleging infringement of a registered design, it could take months to assemble a court and jury to decide whether it is truly an infringement. The design may be obsolete by the time a court issues a final infringement judgement, and any preliminary injunction or intermediate action taken by the court may have harmed the party who was legitimately entitled to use and license the registered design.

Rather, if a panel of fashion specialists was created to make decisions, not only would the judgements be made faster, but the panel would also be more versed with fashion designs and thus better equipped to discover infringements. This would bring more uniformity to the process and may deter false infringement lawsuits.

Since fashion law is a new branch of law, it is critical to take a fresh approach to it. Fashion law has an unmistakable impact on society and the economy. Also because items are both creative and derivative, the fashion industry is volatile. Because it is widely consumed, it has had a significant commercial impact. High consumption and a high price are incompatible. It is here that the term “piracy” is born. It’s also important to approach this niche with a different perspective because while the obstacle is the same in each jurisdiction, the protection and laws aren’t the same.

About the Author

Protecting Fashion: A Comparative Analysis of Fashion Design Protection In Europe And India

Anubhav seth

Student at Vivekananda School of Law and Legal Studies, VIPS.

He traces his academic roots from majoring in CBSE Class XII Commerce from Lancers Convent Senior Secondary School, Delhi. His areas of interest and research work are Constitutional Law, Criminal Law, Corporate Law, Intellectual Property Rights, and International Laws.


[1] Barrère, C. and Delabruyère, Intellectual property rights on creativity and heritage: the case of the fashion industry, 32,3 European Journal of Law and Economics, pp.305-339 (2011)

[2] WIPO, https://www.wipo.int/trademarks/en/, (last visited on 6th August 2021)

[3] WIPO Magazine, https://www.wipo.int/wipo_magazine/en/2008/01/article_0006.html, (last visited on 6th August 2021)

[4] Forever 21, Inc. v. Gucci America, Inc. et al, 2:17-cv-4706-SJO (Ex).

[5] CS (OS) 4/ 2011

[6] AO. NO. 393 OF 2008

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