By Isha Chaudhari
The fashion design in India according to 2019 the retail market value is approximately $1.78trillion (excluding jewelry). There have been many designs of clothes made by the artists who went trendy but there are people as well as making duplicate designs and selling the same designer clothes. The Indian fashion industry consists of a massive amount of designers including clothes, different kinds of handbags, various varieties of shoes, trendy jewelry, and of course the accessories.
The Indian fashion industry is taking massive steps towards the development in fashion. Where the designers are taking efforts in creating unique and attractive designs in the same way it is been getting devastated by the replication of the designs. Due to the increase in technology and innovations being made every day has made it easy to copy and making in the duplicate designs. Being concerned about the unique design and innovativeness has raised concern and request to the Intellectual property rights (protection of the design structure).
Keywords: fashion industry, mark, innovation, replication of designs, intellectual property .
As India is specifically known for its rich and high diversity all over the world. In India, people wear many kinds of traditional clothing costumes, and accessories according to the diversity they are living in.
In India, the fashion industry has leaped in the development, as the designers in this modern era have great ideas and are making unique designs for this industry. There have been many complaints from the fashion designers about their designs being copied and piracy is taking place. Over the past many years there has been an ongoing debate for the protection in the fashion industry for copyright protection. As piracy is been done in a huge number the fashion designers should take a step forward to use copyright protection where their designs can still be exclusive and no one can copy or sell the designs without the respective permission.
The subject matter of protection has been mentioned where which all topics under artistic work are included in the Copyright Protection Act. Ongoing fast fashion has been in the limelight where most of the piracy is been made and how the fast fashion retailers are making low quality and cheap clothes due to which there has been a decrease in the sale of the original branded clothes, footwear, accessories, and jewels. In India, the artists having protection for their work are having protection for a lifetime and additional 60 years after their death.
Intellectual property rights play a major role in getting expanded in the fashion industry. The fashion industry holds fashion week where models wear designer clothes made by the designers and the designs are launched through the show
Significance of Intellectual Property Rights in the fashion industry
Significance of intellectual property right in fashion designing. The intellectual property consists of trademark, copyright, patent, trade secrets.
Trademarkprotects the brand name and the brand logo. It helps to distinguish in the market through the brand name and logo and as well as for the competitors. Trademarks can also be inside the garment or displayed on most portions of the garment.
Copyright gives protection to literary and artistic work which is original. Although after published and put it to use. In India, the span of Copyright is for the lifetime of the artist and additional 60 years after the person passes away. Copyright protection protects the artistic work of the original work and the owner of the work has all the rights to sue a file of infringement upon anyone who tries to reproduce that particular design.
Patents Fashion provides the creators of the sole legal right for their creation. Let it be a product design or the process related to the fashion business. Hence, by obtaining or Patent over creation, a company can protect its right to its own intellectual property
Fashion and intellectual property
In this multi-billion fashion industry, intellectual property covers a huge amount of rights.The fashion industry includes a wide range of footwear, clothing, accessories, jewelry. A lot of designers have protected their fashion designs and trademarks with the help of intellectual property.The subject matter of protection: Articles designed by fashion designers, they can be protected under various categories of IP as follows:
a) The Sketch Design can be registered as artistic work under the Copyright Act 1957;
b) The Article Design can be well protected under the Designs Act (under class 02, 03, 05, 10 and 11 of Third Schedule of Designs Rules, 2000);
c) Color Combinations can be protected under the Copyright Act, 1957;
d) Fabric or any other material used in the Article can also be protected under the Designs Act, 2000 and Patents Act, 1970.
There is a case which highlights issues among the copyright and design protection Rajesh MasranivsTahiliani Design Pvt. Ltd. on 28 November , 2008 in this case the plaintiff made an allegation that the drawings which were made under the course of developing of the garments and the accessories were coming under artistic work in Section2(c) of the Copyright Act,1957. The pattern which was printed and embroidered on the material was also alleged to be artistic works in the own right, as were the garments finally designed. The plaintiff also made allegations of infringement of copyright in various artistic works, and a single judge issued an interim injunction in its favor.
The IPR Regime in India protects the fashion design under three legislations i.e. The Designs Act, 2000, The Indian Copyright Act, 1957, The Trademarks Act, 1999, and GI Act, 1999. From the perspective of the Fashion Industry, the Acts do not protect the entire garment as a whole; rather it protects the particular/individual aspects like shape, pattern, color, etc. of the garment.
1) Protection cannot be given to unregistered designs:
The design act can give protection only to the registered designs. The fashion designers who have not registered their respective designs would not be able to take advantage of this act. They cannot file a suit for the recovery of damages for unauthorized copying of their designs and an injunction against the repetition thereof.
2) Protection under the Act of Copyright:
A fashion design, which is capable of being registered as “design” under the Designs Act, 2000 but not so registered, will get copyright protection under the Copyright Act, 1957. Copyright in fashion design, in this context, will subsist up to (50th) reproduction by an industrial process of the article to which design has been applied.
Fashion design which is an original artistic work and hence not capable of being registered as “design” under the Designs Act, 2000 will get copyright protection in the form of copyright in original artistic work under the Copyright Act, 1957.
Another important parameter of this provision is that copyright in the design shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or with his license by any other person.
The fashion designer who needs to protect his protection under the creation of the Copyright Act 1957 needs to prove that
a)The creation is an original artistic work within the meaning of the Copyright Act 1957, and not the design within the Design Act 2000.
b)That the article (e.g. garment), to which the design derived from the creation has been applied, has not been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.
In 2011 there was a dispute regarding the ownership of the copyrighted work. The case wasRitikaPvt Ltd. v/s BibaAppareldPvt.Ltd.
In this case, both the Plaintiff and the Defendant were famous apparel designers and manufacturers. Both companies design an attractive contemporary ethic wear creative fusion fashion. The plaintiff filed a suit against the Defendant seeking an injunction against the Defendant for reproducing, printing, publishing, selling prints or garments which were a reproduction of the plaintiff’s prints and garments. Plaintiff claimed to be the first or original owner of the copyright in the artistic works related to these garments and also claimed trade secret violation by its ex-employees.
It is, however, to be noted that the plaintiff`s designs were not registered under the provisions of the Design Act, 2000. The Defendant, on the other hand, argued that the Plaintiff’s case fell squarely under Section 15(2) of the Copyright Act, 1957 i.e. the copyright in the Plaintiff’s design ceased to exist as it had been reproduced more than 50 times by an industrial process.
The issue that occurred was the work of the plaintiff is copyrighted and is then passed through the process of manufacturing exceeds 50 in number, whether the plaintiff loses the ownership over the copyright works?
The judgment was made very clear and concluded that the suit barred under section 15(2) of the Copyright Act, 1957 as the Plaintiff’s copyright in the said works had to cease to exist. Ritu Kumar by reproducing the said designs on its apparels, more than 50 times, was not only disentitled to design protection but also disentitled to enforce its copyright in the original drawing of the design. The court concluded that there was no copyright infringement, not by comparing the similarity between the Plaintiff’s prints and the Defendant’s printed reproduction, but by holding that the Defendant was creating apparel by an industrial process and was not merely lifting and affixing a print taken from the copyrighted work of the Plaintiff.
Ongoing fast fashion
Over the last few decades, the fashion industry has changed immensely. In the 80s the designers used to predict the consumers’ taste and preferences before the products were made and released in the store but now in the 21st century, the designers are in a cat competition where the whose product will be launched first and who will trend in the market. As per the research, the youth are going crazy and want to buy the latest trendy and fashion items as soon as it is out for the sale. People buy clothes more frequently; the high-end brands have huge market attention on themselves. The fast-fashion retailers start their work once the high-end fashion designers showcase their design at the Fashion week and then after getting to know the designs of the fast-fashion retailers with the help of the new technology the fast-fashion retailers can grab the high-resolution photo of the designs. These manufacturers then manufacture low-quality clothes which are sold at cheap prices. They get a high profit as they have a low production cost and in this way piracy and copying of original designs are done and are sold.
Copyright protection for the design:
Copyright is a field in Intellectual Property Rights where the original artwork is being protected by the Copyright Act. The first main element is that the work should be “original” and should be in a ‘material form’. Many kinds of work are capable of copyright protection such as literary work, dramatic work, artistic work, and musical work.
Fashion design falls under the category of ‘artistic works’. For artistic work to be protected under Copyright protection it must have a level of aesthetic appeal to it and should be the product of the creator’s skill and knowledge.
In brief, the copyright product must be original, creative, independently made, fixed in a tangible medium.
Copyright protection gives several rights to the owner to protect his/her work. Important rights are: right of adaptation, right of reproduction, right to publication, right to make translations, communication to public
Piracy in the fashion industry:
Copying which is unauthorized and illegal is the form of piracy. In the fashion, industry piracy is the copying of designs, copying of the logo or label of the fashion trend. Fashion design piracy can be split into two categories:
1) Knockoff and
Knockoff:Knockoff is a copy of a product that is popular and is produced illegally without a license. The products are way too similar to the original product and are attached with the name of the different designers.
Counterfeit: A counterfeit is a copy of the original fashion design, even the brand name and logo is a copy of the original fashion design. And counterfeit apparel is sold in an attempt to pass as the original. This situation involves piracy in fashion design besides piracy in the logo or label of fashion brand.
The fashion industry is a huge multi-billion industry where India is has been rapidly increased from past decades. An increase in the new designs in the industry leads to an increase in the same level of duplicate production of clothes cause of the ongoing fast fashion. The style designers should get educated about Intellectual property rights which will help them through infringement. Copyright protects the designer things and gives various rights to the owner to protect their design as well. It is difficult to differentiate the copying of an idea that is permitted and of an expression that is protected. The expression must originate from the author and not be copied from another work the work here is considered as original when it owes its origin to the author. If it is copied the copyright protection looks into it.
Only the registered design gets the protection and the designers who have not registered their respective design won’t be able to get the benefits of the Copyright Act.
Our Indian fashion industry needs a shield so that all the structures and designs will be protected by the robbery. The fashion industry is growing significantly and it was very necessary that the efforts of the designers are being protected and they should be unique. The copyright protection is much needed for the protection of our fashion industry to make sure nothing is going wrong and to encourage the budding stylist designer.
- Ownership of Copyright, available at https://en.wikipedia.org/wiki/Copyright_law_of_India#:~:text=(%20Act%20language%20is%3A%22the,deemed%20to%20be%20the%20author
- Copyright and design rights fashion, available at https://studiolegal.com.au/copyright-design-rights-fashion-industry/
- Copyright versus designs, available at https://blog.ipleaders.in/copyright-versus-designs/
- AlokSaxena , Significance of intellectual property in the fashion industry, available at
- Drawing the line between Copyrights and Designs, available at https://spicyip.com/
- Ritika Private Limited vsBiba Apparels Private Limited case fromhttps://indiankanoon.org/docfragment/20292476/?big=3&formInput=midas%20hygiene%20industries
- Rajesh Masrani vs Tahiliani Design Pvt. Ltd , available at https://indiankanoon.org/doc/111285241/