This article is written by Vikash Dhaka, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
We have Intellectual Property Rights to protect the kind of work that is created by our intellect i.e. our brain. For protecting the writing, artwork, etc. we have copyright, for inventions, there is Patent Law and for the brand name, we have Trademark Laws.
When it comes to the fashion industry, respected designers put their efforts into making new and different designs for clothes, jewelry, or any other accessories. They are equally competent to protect their work under the IPR. If we look at fashion law at the global level, the situation seems quite awful. In the UK, they have the Copyright, Designs and Patents Act, 1988. Section 4, where the artistic work is defined, doesn’t include the designs on clothes, limiting the scope of designers to protect their work under the above act. In the US, there are no specific laws for design protection, there is the protection of the brand name of clothing under the trademark.
In India, our Parliament has enacted the Design Act, 2000 for the protection of designs.
As we all know that there is a lack of awareness regarding the IP laws in India. Many fashion designers hesitated to patent their designed clothes. The designers think that patenting the designs will consume a lot of time and money which is absolutely a myth. In today’s time, it is a very simple process to patent your design.
Anita Dongre is a well-known tycoon in the Indian fashion designing industry. She is a very renowned Fashion designer. She owns a fashion house named ‘House of Anita Dongre’ founded by her only. Her work mainly focuses on the bridal collection such as lehengas etc. along with the sarees, kurtas, etc. In this article, we will discuss the different ways to protect her work in the fashion industry.
How to protect your design?
A fashion designer puts a lot of effort and time into making unique designed clothes or jewelry. In India, it is very easy to copy the design of jewelry and clothes and sell the same at a low cost. The most iconic example will be the small shops in Chandni Chowk of Delhi where the most famous design suits are copied and sold at a very meagre price. So, it is high time that famous designers must know their IP rights in their designs.
Under the Copyright Act, 1957, we have Section 2 which defines the term ‘artistic work’ which includes design also. So, we can protect our design by the virtue of the Copyright Act.
But, we have the Designs Act, 2000 for protecting our designs in the Fashion Industry. Under this act, design is defined under Section 2(d). This act protects design whether it is on clothes or jewelry or any other accessory, not the clothes where design is inscribed.
A person who has registered their design under the Design Act will have a monopoly on the same for ten years. During this term, any kind of imitation or copying of the registered design, by any individual other than the owner or his authorized agent, the person will be liable to pay damages to the proprietor.
The conflict between Copyright Act and Design Act
Any fashion designer must register her work to utilize the work to the greatest extent. Since we all know that the designers can register their designs either under the Copyright Act or the Design Act. However, many designers are willing to register their work under copyright because it protects the registered work for over 60 years as compared to the 10 years by the Design Act. This particular issue was put to rest by one of the judgments of the Delhi High Court. In the case of Ritika Private Limited vs Biba Apparels Private Limited, the plaintiff and the defendant were the famous boutique apparel designing brand for men and women in India.
Plaintiff initiates the suit contended that the defendant has copied his design and is selling the designs as his own in the market and there is a violation of Trade secrets by its ex-employees. Plaintiff didn’t register the designs under the Design Act, 2000. However, the defendant contended that Plaintiff’s right over the design ceases to exist by the virtue of Section 15(2) of the Copyright Act. Section 15(2) of the Copyright Act states that the copyright over the design ceases to exist after the said design is reproduced 50 times via the Industrial process. The honorable court held that there is no copyright infringement by the defendant as the said design is reproduced 50 times via industry process and by the virtue of Section 15(2) of Copyright Act, 1957, Copyright ceases to exist in the design.
There are two options for the person who wants to register their designs. The first one will be under the Copyright Act as an ‘artistic work’ by Section 2(c). But, there is a limit to the registered design as mentioned in Section 15(2) of the Copyright Act. The other option will be registering your design under the Design Act, 2000. But, Section 15 of the Design Act, 2000 states that there exists no copyright in the designs which are already registered under the Design Act, 2000. So, you can’t register your design under both Acts, the fashion designer has to be registered under any of the Acts.
GI tag in Fashion Industry
Since Anita Dongre is indulged in the business of fashion designing clothes, she may need some specific types of clothes to make her work effective. Let us say, she is preparing a lehenga for a bride which is made up of Banarasi silk. Does she need any kind of permission or license to use the Banarasi Silk? This question needs to be answered to avoid any other legal trouble for Anita Dongre in the future.
If we look around the world, each place has its own distinct product or any goods or any other characteristics. For example, China Silk is famous all over the world, Dhaka Muslin, Venetian Glass, etc. are more such examples. The relation between the product or goods and place of origin is Geographical Indication (GI).
GI indicates the origin of the agricultural or natural or manufactured goods in any place, which possesses certain characteristics or the reputation. Many products in India got GI tags such as Basmati Rice, Kanchipuram Silk Saree, etc.
Our parliament has enacted The Geographical Indications of Goods (Registration and Protection) Act, 1999 to protect the GIs in India. There is no mandate to register a GI under the Act. However, if the GI is registered, it will help while taking action against the infringer. GI is necessary to protect and maintain the reputation of the product. Many competitors can hamper the product and can damage the reputation.
Case Study of Darjeeling Tea
India is the largest producer of tea in the World. Around one-third of tea from India exports to different parts of the world. There are many competitors such as China, Kenya, etc. who also export tea to the world.
There are many varieties of tea in India and one of the famous is the Darjeeling Tea which is produced in the Darjeeling district of West Bengal. Darjeeling tea is famous all over the world. What is the need for Registering the Darjeeling Tea under the GI Act? The answer is that there are many competitors all over the world selling tea. What if Nepal or China started to sell their teas as Darjeeling? To protect from such malpractice, it is an imminent need to register the tea Under the GI Act.
The fashion industry generates a lot of revenue. There are many celebrated fashion designers in India, be it Sabyasachi or Anita Dongre or Manish Malhotra and many more. These designers put a lot of money into creating new designs and the same designs are being copied by many small designers. These designers should know the fashion laws of the country to protect their designs.
Many small fashion designers are not aware of their rights in their designs. In case if they are aware of their rights, they would not know how to protect the same. There is no doubt that there is a lack of awareness about Intellectual Property Rights, particularly in the fashion industry in India.
If any fashion designer wishes to protect his design, he is bestowed with many options. Our Parliament has enacted the Design Act, 2000 for the protection of designs on any clothes, jewelry, or any other accessories. However, the fashion designer can protect their work or the name of the designer’s brand or the process related to the design under the Copyright Act or Trademark Act or Patent Act.
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