Fashion in India has existed for more than thousands of years. With diversified geographical territory, fashion adopts its own colour and style. If we look at the geographical figure of India, we would notice that all the states have its unique fashion sense, this taste is influenced by various factors like climate, culture, tradition, etc.
Post 21st Century, the fashion industry has shown a substantial level of growth in the market. Over the period of time, the fashion sense of the people has changed drastically. The fashion sense of the 21st century is way too different from the pre-21st century.
Such substantial growth in the fashion industries could be contributed to only one factor and that is, ‘human intellect’. From time to time, humans have invested their innovative ideas and intellect to produce novel and world–class products. But such huge success of human intellect has its own dark paths. The new design will be launched in the market and is replicated easily by local producers. Such an act not only is detrimental to the goodwill of the company but it also affects their overall trade. And thus the role of Intellectual property law comes into the picture. IP laws grant exclusive rights to the owner for exploiting it. As mentioned above, because the human intellect is involved in creating the IP, it is important to grant protection to it.
The paper seeks to inculcate various IP laws like Design Act, 2000, Trademark act, 1999, patent act, 1970, trade secrets through contract act. It also seeks to analyse the criteria for registration of different IP and punishment in case the IP is infringed.
A Design refers to the features of shape, configuration, pattern, ornamentation or composition of lines or colours applied to any article, whether in two or three dimensional (or both) forms1. There are few essential elements for registration of design, namely (i) The Design should be novel or original, (ii) The design should be significantly distinguishable from the known design or combination of design and (iii) When applied to an article it should appeal to the eye. Though there is a fine line between copyright and design, if a design satisfies all the elements of registration, then the rights pertaining to copyright shall cease to exist as soon as any article to which the design is applied is reproduced more than fifty times by an industrial process by the owner of the copyright2.
It should be noted here that, design of the product has nothing to do with its functionality part. Unlike Hence a handbag from ZARA or a car seat designed by a designer for sports car are few examples of designs. And when the Fashion Industry is concerned, the Design Act will only protect a particular aspect of the product where the novel design has been applied, the design won’t protect the entire product. Unlike Trademark and Copyright, which doesn’t require the registration to be protected, the Design Act makes it mandatory for the owner to register it in order to protect it. The classic example to understand the importance of registered design is “Jimmy Choo”. The said company was able to protect its registered design for a handbag by enforcing their rights against an UK retailer, even though the retailer had no inherent knowledge that the design applied on a handbag is a registered design. Such cases set an example in fashion industry domain that how it can protect the goodwill and huge investments spent by a corporation for creating a design, if the design is registered and its portfolio is managed carefully.3
The said act provides 10 years of protection and additional 5 years of protection (if it is renewed)4. Therefore, the designer enjoys 15 years of monopoly over the market for his novel design.
In case of infringement of a novel design, the owner of the design can move to court under Section 22 of the Designs Act, which gives protection for piracy of design. The said Section protects the real owner from a person who is fraudulently imitating his design, or he is importing an article belonging to any class of article of which the design is registered in the name of real owner5.
The Trademark of any product indicates a certain brand value of that product. The term ‘mark’ under Trademark Act means a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof6. Trademark promotes the brand of the product in a competitive market. It helps in distinguishing one product from the other.
Trademarks play an important role in the fashion world, various Multi National Corporation dealing with fashion products are identified by their trademark, and hence these MNCs are able to stand out of the competition and keep their profits high. It helps people to create a bond with their favourite fashion brand, and thus it also helps the product to maintain its prestige and value in the market7. For example, Louis Vuitton registered its trademark by the name “LV” to create a value in the mind of consumers. So when a consumer will see the logo for LV, he/she will get to know that this product belongs to LV and thus it is a reliable product in terms of quality.
Hence it is very important to protect the trademark of any given fashion company8.
The owner of the trademark can protect its mark for 10 years and then it can be renewed after 10 years9. Hence no one can falsely use the registered Trademark; otherwise the person will be punished under Chapter XII (which deals with offences and punishment). For infringement of trademark the owner can move to the court and ask for permanent and interim injunction. The owner can also claim damages or account of profits, delivery of the infringing goods for destruction and cost of the legal proceedings.
3) Trade Secret:
In India there is no separate legislation for trade secrets. It is governed by the Indian Contract Act, 1872. For any information to be a trade-secret there are three essential criteria which it must satisfy, i) It information must render commercial value, ii) Only few people should have knowledge of such information and iii) The owner of the trade-secret must take reasonable steps to protect the information from the outside world. Such secrets are protected through Non-Disclosure Agreements.
The big corporations In the Fashion industry often keep some of its work as a secret. When the fashion industry is concerned, trade secret refers to those techniques or methods which the corporation doesn’t disclose to the outside world. This helps the corporation to acquire an important position in the market. Sometimes the trade-secret is in the form of software based business models. It contains all the technique and strategy corporation is going to implement to stand out in the market.10
ZARA, a prominent corporation in the fashion world has developed a new technology which will reduce the delivery of trendy fashion products to the market, to a significant extent. It is estimated that ZARA does it in merely 30 days, whereas other brands deliver it in 4-12 month. The technique adopted by ZARA is kept as a secret, and this secret helps ZARA to rule the Fashion industry. Because the trade-secret is governed by the Contract Act, the owner can sue the infringer in case he/she violates the provisions mentioned in the contract.
Patent plays an important role in the fashion industry. In India it is quite difficult to get a patent for a fashion product, but it may be granted in a country like the USA. The patents may be granted if designers come up with completely original ideas like a wrinkle free shoe or cloth, or collapsible shoe. Because people are mostly concerned about the aesthetic part of its product and the functional part in most cases is often very obvious or not so the application of design is more as compared to the patent. Though playing a minor role in the fashion industry, it still can protect the new idea introduced in footwear. Recently few innovations have taken place in the fashion industry which was registered under Patent Acts of the United States. Nike has invented an “automatic lacing system” for which it got the patent under Patent No. 8769844. Apart from the footwear industry, few patents have been granted to fabric or coating processes that increases softness or reduces flammability.
Even zippers, astronaut suits and Kevlar, which are considered to be an obvious design nowadays, might have been one of the game changing inventions in the fashion industry when they were invented. These products, at the time of their invention were novel and was inventive in nature, thus it could have got the patent registration. Obviously now it is a common product.
If a patent is infringed, the owner can move to the court seeking permanent or interim injunction for the infringed patent. The owner can also claim damages or accounts of profits are granted, if it is established that on the date of the infringement; the defendant was aware about the prior existence of the patent.
Fashion industry is a huge industry where replicating the novel design is a common practice. Many local markets replicating the trademark can be detrimental to the brand value of the real brand because it is likely to deceive the consumers at large. hence it is important to protect the fashion world through Intellectual Property. Apart from Patent, Trade-secret, Design and Trademark legislations, Geographical Indication is playing an important role in protecting few fashion products in India. In 2009 the Geographical Indication office of Chennai issued a geographical indication certificate to ‘Banaras Brocades and Sarees’. The protection gives exclusive right to the people living in the said geographical area to manufacture the product and sell it.