This article is written by Ayushi Pandey who is pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho.
Along with the fast-moving life, fashion has come a long way to where it is now. With the shows like Gossip Girl, Sex in the city, Emily in Paris, and Scandal the urge to have a celebrity wardrobe among consumers is on the rise. This has led to counterfeit fashion apparel and items. It is noted that the counterfeit industry makes 250 billion dollars annually and it is unknown to the government where the money goes. Also, the fashion industry highly affects the economy that makes black-marketing easy. The sad part is there is no awareness among the consumers regarding counterfeit buying, to them it is entirely harmless. It is illegal to indulge in the production of goods, it isn’t illegal to buy them. There are codified laws in America and Europe to deal with it but in India, we don’t have that. An Indian designer said that his hand-embroidered jackets which he was selling for Rs 40,000 were being sold on the streets for Rs 1500 the only difference was that the designs were digitally printed. On asking the owner he replied that the designs aren’t copied but an ‘inspiration’, and ‘homage’ to the designer. The present Intellectual Property law structure is not strong enough to protect the fashion Industry. The reason is that the laws do not go parallel with the duality of the essence of fashion in its true form. Weak laws and a lack in the implementation of these are the reasons why designs can easily be reproduced. In this article, the author throws light upon the limited protection through intellectual property law available to the fashion industry and challenges faced by the industry due to these limited ways of protection.
How IP protects the fashion industry?
We have few ways in which fashion designers can protect their design and brand utilising the available limited ways. The brand can be protected under trademark and copyright laws; it can also include trade dress and design patents.
Protection through Trademark Laws
In the fashion business, the role of reputation is vital. The logo of the brand must be unique so that it’s easy to spot it out. According to the World Intellectual Property Organization (WIPO) “A trademark is a sign capable of distinguishing the goods or services of one enterprise.” The uniqueness of a trademark is important because when a unique trademark gets registered, it gets secured beyond the acquiring of rights by using a mark. The proprietor of the registered mark is the exclusive owner of the goods or services associated with the mark and that is how a fashion brand in the fashion industry can protect its brand through trademarks.
Protection through Copyright Laws
Copyright Law also provides a good scope for the protection of the garments. But fashion is based on ‘inspiration’ thus it wouldn’t be an easy task to create an authentic work that is not derived from anywhere. And Copyright only protects the expression of an idea.
- Lady Gaga’s scandalous ‘meat dress’ was an expression that was entirely worthy to be copyrighted. As nobody has come up with the idea and implementation of wearing ‘meat’ to cover up body parts. However, on the contrary, getting protection based on the colour of the role is irrelevant.
Protection through Design Laws
Unlike trademark, copyright laws protection under design is accessible. One doesn’t need to have a big name or brand to get protection under design; the only ingredient that is needed is a meritorious piece of art. The procedure is very similar to that of Copyright but the design includes 3D prints, patterns, shapes.
Protection through Trade dress
The US provides protection with the separability test while the EU does that as a whole. Trade dress is a ‘total image and appearance of the product’ it can include colour, shape, size, texture, particular sale technique. To get registered under trade dress one needs to be established and source identifier.
Protection through Patents
There are two types of patent protection granted design p1atent and utility patent. Design patent for a garment can be done when the dress is innovative in the shape, colour, pattern, or entire product. To get a design patent the good has to be novel and something that has never existed before. While utility patent is tougher to get as it protects functional use of goods. It stays till the next 20 years from the day it has been granted. It is possible for the goods that are eligible to obtain a utility patent to also obtain a design patent but it is highly unlikely that a good that can obtain a design patent is also eligible to have a utility patent.
What are the challenges faced for IP protection?
The main problem that is faced by the fashion industry is that they can get distinguished from other brands by trademark registration of their brands. The case of Star Athletica provided a scope to reanalyse the way fashion law is practised with a huge emphasis on copyright laws for protection.
For most of the entire world’s population, wearing clothes is just for the sake of covering the body. But for several people, dressing up, using different accessories is passion and therefore they go in demanding and buying fashionable goods at a minimum price which gives rise to counterfeit markets and is threatening to the designers who are working day and night to bring the best out of an outfit. With the emergence of fast fashion where the newest collection comes straight to the stores from the runway. In the entire situation, the enforcement becomes hard. The creation is jeopardised. For example, a fashion designer whose garments and accessories were in a fashion week worn by famous models and celebrities and the garments ends up in a posh where they are selling it for Rs 10,000 wherein fast-fashion corporation like forever 21 create copies of the same style and sell it in a price way lower than that of the original owner. And for the normal public both the garments, the original one and the copied one, both look identical. So, legal enforcement needs to be made in a manner that helps the designer in every possible way and also not restrict their creativity.
Position in foreign countries
Few states that do have legislation for fashion design are the United States and European Union. In comparison to European Law, American law has ignored the fashion industry which has led to a huge number of cases revolving around ‘fashion piracy’ than the European Union. The European designers have enjoyed the privilege of legal protection that American designers haven’t. The American fashion law is governed with the help of IDPPA. Due to the increase in ‘fashion piracy,’ the US government came up with fashion design legislation on 30th March 2006. Amendments were made over time. Chapter 13 provided that fashion protection will be given for three years. After the case of Star Athletica, LLC vs. Varsity brands, designers are looking forward to getting protection under design patent or being of utility patiently even if the process is lengthy but that would stop the misuse of their creation. This happened because the decision by the court in the case concluded that only those designs would be qualified for copyright protection that serves a utilitarian purpose. After this incident trade-dress also came in trend for sucking protection and the reliability was not solely on copyright.
Legal protection in EU
In the year 1998, Legal protection of Design (a European Directive) was adopted by European Council. It framed rules for eligibility for protection. Exclusive rights are granted to the owner for twenty-five years. This regulation protects registered as well as unregistered design. One main difference in both US Fashion Law and the EU is that the US protects with the separability test while the EU does that as a whole.
Fashion law is a new branch of law hence it’s very important to have a new approach towards it. It is an undeniable fact that fashion law affects society and the economy. The fashion industry is unpredictable because the products are innovative and derivative. It has made a huge impact commercially because it is highly consumed. The high usage and high price don’t go together. That is where it gives birth to ‘piracy’. It is also needed to treat this niche with a fresh mind because even if the challenge is the same in each state the protection isn’t. The laws aren’t uniform. The Innovative Design Protection Act (IDPA) of the US and the Legal Protection of the European Union marks a significant difference. And the difference between IDPA and European Union is unimaginable because there is no fashion law in the country. The designers have taken shelter under copyright laws and that is not enough. We can draw this conclusion from the case of Star Athletica, LLC vs. Varsity brands as there was huge reliability upon copyright law.
- Volume 46, Number 46, Number 4 Page 571 “A Design of its own: How to protect the Fashion Industry
- Volume 5, Fashion Law: Protecting Brands and Designs
- Wander D, Trendsetting: Emerging opportunities for the legal protection of Fashion Design
- Joanna Buchalska, ‘Fashion Law- A New Approach’, Queen Mary Law Journal
- Cassey L. Tripoli Fashion Forward: The Need for a Proactive Approach to the counterfeit Epidemic
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