This article has been written by Akansha Chopra.
Table of Contents
Introduction
Intellectual Property (IP) can be defined as an intangible property that results from human intellect and creativity. The main forms of intellectual property are (1) Trademark, (2) Copyright, (3) Patent, (4) Geographical Indications and (5) Industrial Design. Trademark refers to the symbol mark, slogans, logo, colours and patterns that help to distinguish one product from that of the other. Copyright refers to the expression of ideas and thoughts, such as literary, dramatic, artistic works. Patent refers to inventions, which are new, original and useful work. Intellectual Property Rights thus protects such intangible properties that result from intellect and gives rights to its owner to have a monopoly right over such property.
Fashion industry is one of the most dynamic and developing sector in India. India is a vast country with lots of States and different Union Territories and every state has its own tradition and culture. Fashion is an art that reflects the lifestyle of the people and it not only dedicates to the clothing but also to the footwears and other accessories. As such, intellectual property rights should protect the fashion industry. Working in the fashion industry, as a designer or the product owner indicates artistic and creative works. Intellectual Property mainly aims to secure rights of the owner of the products, and nobody can use the property without the owner’s permission. It also generates revenue for the owner by using the intellectual property exclusively by the owner or by giving permission to the third parties by entering into licence agreement.
Trademark and fashion Industry
A trademark is a sign or a mark which enables one to distinguish one good from that of the other. It also includes other forms of mark such as certification marks, collective marks and labels. Trademark identifies the product and its origin, guarantees quality of the product, advertises the product and creates goodwill for the product in the market. Trademark law also helps to distinguish genuine products to that of the copied products.
Trademark also plays a vital role in the fashion industry by protecting a brand name, image, design, logos and features of the fashion attires that are capable of distinguishing such attires from that of the others. The main aims of the trademark law in the fashion industry are in high demand. Its focuses on three main things:
- To attract consumer’s attention;
- Interest of trademark owners, and;
- Market competitors
The trademark owners have to make their products or goods in a unique style or to market their products in different ways to attract consumer’s attention in the crowded market. For protecting the brand, image, logo and sign of the products or goods they have to register their goods under the trademark law.
In this regard, Micolube India Ltd. vs. Rakesh Kumar (2013), trading as Saurabh Industries & ors. the Plaintiff used a registered design as a trademark. The Delhi High Court observed that:
“Having regard to the definition of a design under the Section 2(d) of the Designs Act, it may not be possible to simultaneously register the same matter as a design and a trademark. However, post registration under Section 11 of the Design Act, 2000, there can be no limitation on its use as a trademark by the registrant of the design. The reason being: the use of registered design as a trademark is not provided as grounds for its cancellation under Section 19 of the Design Act.”
This judgement has thus extended the scope of trademark protection in India. Consequently, fashion designs registered under the Designs Act not only get protection from the Act but also from the Trademark Act.
Copyright in fashion industry
Copyright protects the works that are original in nature. Fashion is a form of art, which is implemented by artists while designing clothing, shoes and other accessories. Copyright laws protect the artistic design work as defined under Section 2(c) of the Copyright Act, 1957. Section 2(c) of Copyright Act, 1957, refers to a painting, sculpture, drawing (including map, diagram or a chart plan), an engraving of a photograph, work of an architecture or any other work of artistic craftsmanship. Copyright protects the design work of the designer (4).
However, Section 15 of the Copyright Act defines the special provision regarding copyright in designs registered or being capable of being registered under the Designs Act, 2000 (5). Copyright shall not subsist under this Act in any design which is registered under the Design Act, 2000. This provision clearly shows that Copyright and Design are related to each other. Fashion industry is sort of the design, the above described that fashion design are reliable and applicable to the protection under the Copyright Law. Fashion design is an original artistic works which are being capable to registered under the Design Act, 2000, but it will not get protection under the Design Act, 2000, the design get protection under the Copyright Act, 2000.The design gets protection under the Copyright for the period of 10 years from the date of the registration.
In Ritika Apparels vs BIBA (2016), the plaintiff claimed copyright protection on various drawing and sketches, which are created on garments and already sold by the plaintiff under the trade name RITU KUMAR. The plaintiff claimed that the RITU KUMAR was the first owner of the various drawing and sketches, but the plaintiff’s designs were not registered under the Design Act, 2000.The plaintiff filed the suit against the defendant that the defendant was reproducing, publishing, offering or selling etc., prints or garments which are a colourable or substantial reproduction of the plaintiff. Although, the defendant urged the issue for the dismissal of the suit as per the provision of Section 15(2) of the Copyright Act, 1957-
“Copyright in any design, which is capable of being registered under the Designs Act, 2000, but which had not been so registered, 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.” Further, it was noted that the defendant was not violating the copyright work of the plaintiff under the Copyright Act, 1957, and was neither entitled to design protection.
Patent in fashion industry
Patent refers to the new invention which includes new technology to manufacture products like shoes, fibres, textiles etc. Patents are the essential of the commercialisation to the inventions. Artists of the works cannot get patent protection under the Patents Act. Patents are provided for the novel invention which is useful for the public. Fashion industry cannot get patents for the machinery they have, technological inventions give their machinery for the great push in the economical market. Fashion industry manufactures (like clothing, footwear, shoewear, and many other products) with the help of technological invention to produce their products in the market.
Industrial design in fashion industry
Design refers to the shape, colour, pattern etc. of the product. The term “design” defines under Sections 2(d) and 4 of the Design Act, 2000. From the perception of fashion industry, the design act cannot protect the full garments; rather it protects design, shape, colour, pattern of the product. The design should be registered under the Design Act, 2000. The Copyright Act protects the registered designs, also protects the rights of the owner of the design. The main aim of the act is to protect the works from privacy. Unregistered designs are not protected by the Act, or nobody can claim damages of their unregistered design. Designs are the key of the fashion industry to visualise their products in the market.
Conclusion
Fashion industry invests huge amount of money to create different in the market. All the creative ideas and artistic works are protected by the Intellectual Property Rights in the various forms. The intellectual property generates income for the owners through licensing and assigning of their products with the third parties and collect royalty. Licensing and assigning the works improve the commercialisation of the intellectual property in the market. There are some negative remarks on the fashion industry in India which creates lots of confusion in the market. There are some necessary points to create Intellectual Property more favourable to protect the fashion industry. First, the term “fashion design” should be defined under the Design Act. Second, the unregistered design should also be protected for the short period of time in the market. Last, the procedure of registration of design should be made more simplified under the Design Act, 2000. These few steps can increase the growth of the Fashion Industry in the market and help the creative owner of the works.
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