This article has been written by Kanishka Singh, pursuing a Diploma in Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho and edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Table of Contents
Fashion is a form of art that is used by individuals to express themselves. To adapt to what is trending in society, the emergence of fashion law has taken place. It is a form of protection provided to fashion designers, wholesalers, photographers, media agencies, and retailers. It comprises a broad range of duties such as dissolving business entities, advertising on brand development, IP Monetization, franchising, merchandising, etc. The fashion has also piqued interest in the Indian Legal Fraternity as it started to set roots in the Indian soil.
According to Coco Chanel, fashion can be described as:
“Fashion is not something that exists in dresses only. Fashion is in the sky, in the street, fashion has to do with ideas, the way we live, what is happening.”
Fashion law is often described as an amalgamation of various laws such as contract law, employment law, consumer protection law, corporate law, real estate law, tax law, business law, and IPR law. It is also known as Apparel Law, as it protects the life of a garment from conception to brand protection. Fashion law often includes safety, sustainability, and consumer protection. The fashion lawyers advise their clients on legal issues related to the fashion, textile, apparel, luxury, footwear, jewellery, and cosmetics industries. They assist in drafting and negotiating contracts, as well as litigating trademark, copyright, and other intellectual property rights.
History of fashion laws
Fashion law can be traced back to French history. With the evolution of designs and fabrics circulated worldwide, fashion has been an intrinsic part of French colonialism since the 17th century. Traces of fashion law can also be observed in mediaeval Europe, where sumptuary laws related to clothes were used to regulate social status and wealth through clothes. These laws put restrictions on what type of fabrics, colours, and designs one should be wearing if one belongs to a particular class. Another significant change in fashion law history was the emergence of intellectual property rights. France established the Chambre Syndicale de la Haute Parisienne in 1868 to protect the rights of fashion designers. The organisation also established the concept of original design and protected the designs against copycats. The emergence of labour law took place in the 20th century, which protected the labourers in the fashion industry. One of the laws initiated in the US was the Fair Labour Standard Act, which was established in 1938. The law helps regulate working conditions, which include minimum wage and maximum working hours. In the 21st century, fashion law started to expand globally as designers and retailers started to work across borders. The World Trade Organisation was formulated in 1995 to encourage and promote free and fair trade around the world. Environmental regulations started to emerge as one of the intrinsic parts of the fashion industry.
Emergence of fashion laws in india
The emergence of fashion law in India could be observed due to the availability of protection for traditional textile designs and crafts. Traditional textile designs and crafts have been the pride of Indian culture since ancient times. It was observed that there were around 1,000 handloom weavers in the early 1990s but that number significantly declined to 30 in 2002. The major reasons for such a decline were:
- The decline in demand for traditional Indian clothing with the rise of Western clothing in India.
- The usage of synthetic materials increased in India. Due to this, there was a decline in demand for clothes.
- The lack of funds and skilled personnel was also one of the reasons for the decline.
Since India was one of the largest producers of cotton, jute, and silk across the world, there was a need to have statues to protect the textile industry in India. Moreover, the fashion sector also provides a significant contribution to the Indian economy and helps to generate employment. Due to these reasons, the emergence of fashion law in India took place. Though it is still evolving in the country.
Laws related to fashion
Fashion is an integral part of modern society. Since the industry comprises a broad range of occupations, fashion law is governed by multiple laws to protect designers, photographers, retailers, wholesalers, and even consumers. Fashion law can be further divided into two parts:
- Fashion and IPR
- Fashion and other rights
Moreover, a legal right has also been provided to the aggrieved person against the act of copying or counterfeiting. They can file a suit for injunction against the wrongdoer who has used the copied material. Even retailers can protect their stocks under Indian Laws
Fashion and IPR
Intellectual property rights often protect the creation of the human intellect. It can include paintings, literary inventions, etc. Any person who has created a novel or unique creation can have his rights protected. Being a creative industry, the fashion industry involves designing, manufacturing, and dealing with new and unique designs for clothes, accessories, or jewellery. Thus, IPR plays a significant role in the fashion industry. In India, intellectual property rights are comprised of the Copyright Act 1957, the Design Act 2000, and the Geographical Indications Act 1999 and apparently govern the apparel and design industry.
Copyright and fashion
Copyright is protected under the Copyright Act of 1957. It is a legal right that protects any work that involves originality and creativity. Section 2(c) of the Copyright Act of 1957 protects such creations from being exploited or made into copies. The Copyright Act does not protect the ideas or facts of the creators but it does protect their creation, which happened through the idea. The purpose of the copyright is to protect society as a whole as well as to provide consumers and creators with the opportunity to benefit from both past and present creators. In the fashion industry, the copyright can be textile designs or graphic designs of the designers. However, it does not extend its protection to useful articles.
Design and fashion industry
The Design Act, 2000, significantly protects designs in India. Design can be defined as any shape, pattern, colour, or combination that is unique and makes the garments distinguishable from each other. It is protected under classes 2, 3,5, 10, and 11 of the third schedule of Design Rules 2000. It has been enacted to protect the nonfunctional part of the product which may have an aesthetic appeal, such as the arrangement of shapes, decorations, lines, etc. Moreover, the act also protects designs against piracy. This has been mentioned in Section 22(4) of the Act, which states that in cases of piracy, the infringer shall be liable to pay a sum not exceeding Rs 25,000 to the registered proprietor. Also, the registered proprietor can be awarded an injunction against the infringer.
- However, damages cannot be claimed if the design is not registered. To be registered as designs under the act, the following conditions need to be met:
- The creation should be original
- The creation should not be disclosed anywhere in India or in any country in any manner prior to the date of filing the registration.
- The creation should be distinguishable from other designs or combinations of designs
- The creation should not contain scandalous or obscene material.
Patents and fashion
In the case of patents, fashion designers do not go for protection under the Patent Act. But with the rise of technology, designers have started to use new technologies to manufacture shoes, jewellery, fabrics, etc. One such example of technology and artistic innovation can be observed in the Spring Summer 2023 Paris Fashion Week show, where a brand named Coperani sprayed liquid fibre on the model. The liquid fibre later turned into a beautiful dress. To register the innovation under the patent, it is important that the innovation be novel and nonobvious in nature. Aside from this, it should be useful and original. The patent holder gets the sole right to his or her creation, whether it is a product, design, or process related to the fashion business.
Trademarks and fashion
A trademark is protected under the Trademark Act of 1999. A trademark can be referred to as any word or symbol that enables a brand or organisation to distinguish itself from others. It is created for the goodwill of a product, guarantees the quality of the product, approves its originality, and distinguishes it from other copied products. However, it must be noted that in order to avail trademark protection, there should be uniqueness in the product to gain consumer attraction. In India, both unregistered and registered trademarks are protected against infringers. These two conditions must be met to register a trademark. These are:
- It should be distinctive in nature.
- It should not be confusingly similar. It can be through sound, meaning, appearance, etc.
Fashion and other laws
Despite the major significance of intellectual property rights, fashion law is also comprised of other laws to protect the rights of the aggrieved person. These laws include consumer protection, Competition law, Corporate law, labour law, international law, international trade, etc. Some of them are discussed below:
Consumer protection and fashion
Consumers play a significant role in every business today. According to one report mentioned, it has been observed that the Indian clothing market will be around Rs 25 trillion by 2030. Due to the rapid change in trends as well as the emergence of fast fashion, the demand for clothes has increased significantly among consumers. Therefore, in order to protect them from unfair practises, the Consumer Protection Act of 2019 was implemented by the government to protect consumers from unfair practises done by owners. Moreover, the Consumer Protection (E-Commerce) Rules, 2020, were introduced in India to protect consumers against flash sales and unfair trade practises done by online websites.
Labour law and fashion
The fashion industry has helped generate millions of jobs for people. Yet, it has been subjected to unregulation in the employment industry. It has been found out that the subsidiaries remain unregulated, due to which many people lose their jobs easily. Moreover, the textile industry is known for encouraging child labour. Therefore, in order to protect the employees of the fashion industry, various legislation comes into play. These are the Industrial Dispute Act of 1947, the Factories Act of 1948, and the Payment Wages Act, which talk about the basic standards that need to be followed to keep a check on factories’ health and safety. Recently, the government formulated three codes, which are consolidations of the three previous acts. These are:
- The Indian Industrial Relations Code 2020: It mentions the relations among workers, layoffs, retrenchment, and industrial dispute settlement.
- The Indian Code of Social Security 2020: The code contains provisions related to funds, employee insurance, gratuity, maternity benefits, etc.
- The Indian Code of Wages for 2019: The Code focuses on providing minimum wages, bonuses, and the payment of wages.
Foreign trade and fashion
With the rise of globalisation as well as India’s liberalisation in 1991, foreign trade has increased significantly. The textile industry contributes around 8-9 % of India’s total merchandise exports. According to T. Rajkumar, Chairman of the Confederation of the Indian Textile Industry, new policies will bring transformative changes to India and impact trade positively.
Environmental law and fashion
The fashion industry has been notoriously infamous for degrading the environment. Moreover, the consumer is well aware of climate change and environmental degradation. Due to the high awareness among consumers, they have shifted to using sustainable fashion products. Moreover, the brands have started to become environmentally conscious. The Environment (Protection) Act of 1986, the Indian Hazardous Wastes (Management and Handling) Rules of 1989, and the Ozone Depletion Substances (Regulation and Control) Rules of 2000 are some of the laws that ensure that industry-specific standards are to be followed by the fashion industry.
Advertising law and fashion
Advertisements are considered one of the major channels through which vendors or businesses convey their information to consumers. It is referred to as one of the forms of media and can either be in digital or printed form. The Advertising Standards Council of India governs advertising in India. The ASCI is a self-regulatory body. Moreover, the Prevention of Misleading Advertising as well as the Advertisement Standards Council of India’s Code for Self-Regulation in Advertising were initiated. It was a guideline to impose penalties on influencers who engage in misleading advertisements.
Fashion federations in India
The Fashion Design Council of India, also known as FDCI, is a non-profit organisation to encourage fashion business in India to the “next level”. It promotes and encourages the members of the council to represent themselves at a global level. It currently consists of 400 members. Some of the eminent designers who are part of this council are Anamika Khanna, Raghavendra Rathore, Varuna Sardana, Gaurav Gupta, Hemant Sagar, Priyadarshini Rao, Malini Ramini, Rohit Bal, and Tarun Tahilini. The Council has collaborated with the Ministry of Textile, the Ministry of Commerce and Industry, and other countries and organisations.
Some major case laws
Micolube India Ltd. vs. Rakesh Kumar Trading as Saurabh.. (2013)
The case was related to the scope of trademark protection for designs. The Delhi High Court held that designs that are registered under the Design Act will not get protection but the registered holder can institute an action against the infringer if the design was registered as a trademark. This judgement expanded the scope of trademark protection in India.
Louis Vuitton Malletier vs. Atul Jaggi
The present case focuses on the applicability of the trademark. The Delhi High Court held that the designers can not only protect the logos or brand names but they can also protect the distinct features of the product. In this case, the court passed an order against the defendant and restrained him from using the Louis Vuitton symbol.
Fashion has always been a form of expression and art for people. Yet, at the same time, it has been subjected to piracy and counterfeiting. These acts often discourage creative people, so effective legislation and regulations are a must to protect them. India, being a pioneer of fashion, is slowly evolving itself to bring effective rules and regulations to the fashion industry.