This article has been written by Hema Paliwal pursuing the Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.
Table of Contents
Introduction
Expansion of e-commerce at Unbelievable Rate resulting in Continuous Rise in IPR infringement Cases. “As per the reports of IBEF (India Brand Equity Foundation) India’s e-commerce will reach the US $ 99 billion by 2024, growing at a 27% CAGR over 2019-2024 with grocery and fashion/apparel likely to be the key drivers of incremental growth”.
Recently a case between Tata Sons Pvt. Ltd.(a holding company of Tata Groups) V/S M/S Electro International has become the talk of the town. Tata sons have owned the domain name www.tatacliq.com since 2015. They found a similar/identical domain name which is www.tatacliqsmart.com owned by Electro International which was being used to deceive the public and sell their products in the name of Tata. Tata group filed a complaint against M/S Electro International for infringing their trademarks and copyrights rights. Interim Injunction has been granted by the court in the favor of Tata Group. The court granted this injunction in favor of the Tata group only because they owned rights in their Intellectual Property. Therefore, people should understand the significance of protecting their intellectual property. As per the reports given by IBEF, there will be a huge jump in India’s e-commerce by 2024 and there will be many more people who will try to infringe your Intellectual Property. The exceptional growth of e-commerce increases the number of Infringers also increases. Therefore, the purpose of this article is to make people aware of the various IPR laws and to encourage them to protect their Intellectual property which is an asset to their business. Also to provide some information regarding Digital Merchandising which is an important technique to expand your e-commerce business.
What is digital merchandising?
“Digital Merchandising includes all the activities or the techniques used to attract the customer in order to increase the sale on their respective online platforms. Digital Merchandising is also known as eCommerce or online merchandising and the person responsible for all these strategies is known as Digital Merchandiser”.
It includes all the activities starting from showcasing different products on the e-commerce portal, adopting different techniques to engage and attract the customer, converting browsers into buyers and also includes all the after-sale services refund and return policies in order to gain customer satisfaction.
Here are some tools and techniques of Digital Merchandising.
- Designing of HomepageÂ
Homepage is the first page which a customer will look upon after opening the website. It should be neat, simple, well categorized and should include all the headings which shall attract a customer. For example, it should categorise gender-related products, differentiate the bestsellers, high discounted products, recommendations, Coupons and discounts, each and every product should be categorized in their respective categories. The homepage should be attractive, easy to use and well-categorised.
2. Product Description
Each and everything about the product that you are going to sell should be well described in a way of visuals, size descriptions, product descriptions, the delivery time with the terms and conditions related to the product. It should be presented in a way that it deters the scope of confusion in the mind of the customer.
3. Customer Specific Products
By decoding the user’s browser history with the help of technology you will be able to find the taste and preferences of the customer and the seller will be able to provide the product which is of the customer’s choice. This will help in seeking the attention of the customer and will result in sale of the products.
4. Customer Satisfaction Services
The seller should provide services with an easy exchange, easy return, refund, genuine feedback by real customers, recommendations, timely delivery and so on in order to satisfy the customer and which also helps in building the brand value amongst the customers. Customer Satisfaction services are the most important part of e-commerce as these help in encouraging the customer to order the product without any hesitation and insecurities.
5. Designing of e-commerce portal or website
An e-commerce website or application or portal should be designed in such a way that it becomes easy for anyone to operate it. There should be smooth and simple functioning of the website so that it is easy for people from all the age groups to use it.
To survive the strong e-commerce market competition, sellers need to understand and apply digital Merchandising techniques in order to grab the customer’s attention.
Importance of digital merchandising
Digital Merchandising plays a crucial role in today’s world of technology. The success of any e-commerce businesses depends upon the good techniques used by the digital merchandiser. It includes all the activities right from approaching the target market to meet their expectations by providing timely deliveries, exchange, return and refund facilities etc. in order to gain customer satisfaction.Â
1. It enables the owner to showcase all of their products under one platform without creating a mess.Â
2. It helps in reducing dependency on manpower which helps in cost-cutting.
3. Doing all promotional activities, grabbing people’s attention from all over the globe, advertising various products, with the least amount of manpower, all of this became possible only because of digital merchandising.
4. Digital merchandising is all about adopting all the possible permutations and combinations in order to expand the customer base resulting in multiplication in sales and brand knowledge amongst the general public.
5. People are also benefited by this concept of digital merchandising as it focuses on customer-friendly policies and they also feel happy and comfortable in spending their hard earned money because they trust the brand due to the services provided by them and don’t hesitate to buy the brand. Therefore, it also helps the owner to increase their brand value.
Merchandising of apparels
Merchandising is related to all the activities done in order to increase sales. Digital merchandising of apparel is when the owner uses any digital platform or develops their own platform to sell their apparel using digital merchandising techniques and tricks in order to widen their customer base. This type of merchandising also enables the owner to grab a large size of customer base with less amount of expense incurred. It’s the need of the time as the e-commerce industry has flourished in the last decade and people have become more comfortable in buying products online. Facilities of return, exchanges, refunds have been given to the customers which were not as easily available as on e-commerce platforms now. Owners who shifted on digital platforms have seen an unexpected growth in their sales and Most of the clothing owners have faced failure by not adopting digital merchandising techniques. Owners are providing apparels at lowest possible price to their customers majorly due to cut in their showroom cost which is the main reason behind the popularity of digital shopping platforms. To survive the neck-to-neck market competition, adopting digital merchandising techniques are must.
Platforms such as Myntra, Ajio, Zara, Mango are some examples that use digital merchandising techniques and are growing rapidly.  
Role of fashion and intellectual property
All thanks to e-commerce, because of which it became so easy for the general public to buy from big brands while sitting at home, that too with so many customer-friendly policies. Even big brands fashion industries follow the digital merchandising strategies in order to reach the customers even though they already carry enough goodwill but still they use this type of merchandising because they know changing with time and technology is the only way to keep their brand’s name consistent in this though market competencies.
Living in the digital world comes with lots of ease in everyone’s lifestyle but hits back with repercussions too. With this digitalization where everything has become so easily accessible that anybody can replicate it and the same is applicable to the fashion industry too. But there is nothing to worry, as with the evolution of time and technology, there has been remarkable growth in the sector of Intellectual Property Laws.
Intellectual property laws protect the rights of the person who by using his own intellect/innovations made any creations, music, designs, writing, inventions or any other work. By protecting your own intellectual property under Intellectual Property Laws, you would be able to restrict the other person to duplicate and sell your own creation in their name and if they do so then they have to face the punishment imposed by various Intellectual Property Laws. Fashion is not only restricted to apparels but they also cover the high brand luxurious goods and products. Designs, unique creations, innovations are the designer’s own intellectual property and in order to protect their own IP there have been sufficient Intellectual property laws.Â
Louis Vuitton, Nike, The Hermes Kelly bag, Versace’s medusa motif and many more carry intellectual property rights in their own brand names for their creativity and skills. There are so many renowned brands which have their IP rights reserved. Likewise in India, big fashion brands owners started getting their creative and artistic work rights reserved under IP laws. In August,2017, Rohit Bahl was the first designer in India to copyright all his collections. Anju Modi, Anita Dogra also copyrighted their collections and with their actions people in the fashion industry started having some awareness towards their IP rights.
Trademarks
Trademarks are defined under Section 2(zb) of the Trademarks Act,1999. It states that “marks capable of being represented graphically and which are capable of distinguishing the goods and services of one person from those of others and may include shape of goods, their packaging and combination of colors”.
Trademarks are the most commonly used method to protect the Intellectual property owned by fashion brands. As defined by the Trademarks act,1999, Trademarks are basically words, symbols or logos. Amongst the fashion brands, trademarks are being used to protect their brand name, or logos and also the distinctive feature of a product which carries excessive value to the business. Gucci, Nike, Caprese, Masaba, Sabyasachi, Manish Malhotra etc. got their trademark registered in their respective classes. Fashion brands such as Louis Vuitton and Raymond carry the status of WELL-KNOWN marks and these well known marks also get the right to get protection across all the classes other than the class in which they got registered. A registered trademark owner enjoys benefits laid down in Section 28 of the Trademarks Act,1999 over an unregistered mark. Trademark registration is valid for ten years and after that, the owner needs to renew the same otherwise it will expire. It’s not necessary to register your trademark but registration adds some rights over the unregistered mark which are difficult to object to, which is why it’s important to get your trademark registered. Â
Patents in fashion and clothing
Patent procedures are more complex and costly as compared to trademarks and copyrights. Fashion and clothing is full of lengthy procedures including very minute details. Patent in fashion and clothing is only applicable when the product or procedural invention involves an inventive way which is new or rare. It must contain a very unique way of creating the product. With the help of patents the patentee can enjoy the monopoly over the product/procedure patented and no one can claim rights over it. Some Examples of patents in the fashion industry are ; technology used by crocs shoes, wrinkle-free fabric, UV filtering textiles that are resistant to fire and water repellent textiles and many more. It’s always advisable to patent your invention in order to reduce/eliminate the chances of its replication and enjoy its ownership solely.
Designs
The word “Design” is defined under Section 2(d) of The Designs Act,2000. It says that Design is a feature of shape, configuration, pattern, ornament or composition of lines or colors. Designs deal with the physical appearances of the article. In order to get the design patented, the designs need to be new and should not replicate the prior designs. Designs are very useful for fashion and the clothing industry in order to prevent the replications of the designs. The registration of design gives power to having “copyrights” in the design. Here copyrights mean that the registered proprietor has the authority to use that design on the article under the class which he had registered. Generally, the duration of a registered design of ten years.
Ways in which fashion and apparel can be protected in India
- In the form of “artistic work” covered under the Copyright Act, 1957
- Features of shapes configuration, patterns and the composition of lines and color patterns under The Design Act, 2000.
- Third schedule of Designs Rules,2001 provides an exhaustive list of products and articles in respect of which an application can be made to the controller.Â
Critical analysis
If we talk about fashion and its protection in the U.S., design patents are available for designers to protect their designs. Design patent protects the look, ornamentation if it clears the thresholds specified. While applying for a design patent the designer is obtaining rights in features, patterns, prints, etc. and not in the entire product which the designer sells.
The Recent Landmark Case; Star Athlentica, LCC V/S Varcity Brands Inc. talks about the “Concept of Separability ” which means the design applied on an article of clothing is separable from the article of clothing. Therefore, the designers will seek protection only on the design of the article of clothing but not on the article along with the design as a whole.
Whereas, In India, The Copyrights 1957 and The Designs Act,2000 gives protection in designer clothes in two different ways.Â
- Protection for the design on the garment which doesn’t include the shape/design of the garment itself.
- Protection of design/shape of the garment itself attributing to its unique fabric and tailoring.
Rohit Bal was the first Indian designer to copyright its Lehenga design in 2017. The lehenga designed by him doesn’t have any drawing over it. Therefore it was his lehenga i.e., the item itself on which IP rights were reserved. If someone replicates his lehenga even other than its original color, it will still lead to piracy.Â
Therefore, Design Laws in India are better and wider than that of the U.S. which also helps Indian designers to protect their design on a wider scope.
Design patents are mostly appropriate for handbags, shoes, jewelry, hair accessories, home decorations. In short design, patents are best fitted for the fashion industry to get their intellectual property rights reserved. Therefore, it’s important to protect your designs with the help of Intellectual Property Laws and eliminate the chances of replications.
Conclusion
Digital merchandising is the concept of the 21st century and people should use this concept in order to flourish their business. Businesses without e-commerce and digital merchandising techniques are just like fish without water. On further observation, we can see all the brands or business owners who used these techniques have flourished at an unmatchable speed. In the Present high-tech life, it’s always advisable to use digital merchandising techniques for the growth and development of your business.
Due to digitalization and the spread of e-commerce, information is so easily available in the public domain which results in very high chances of misuse of one’s IP . But one need not worry as Indian Laws are equipped with various rights for the protection of one’s Intellectual Property as specified under Indian Intellectual Property Laws. By obtaining IP rights over your IP one can enjoy a monopoly over it and stop plagiarism.
 References
- https://bulbandkey.com/blog/merchandise/5-types-of-merchandising-you-should-know.
- Â https://blog.ipleaders.in/ipr-laws-applicable-to-fashion-industry/.
- https://www.mondaq.com/india/trademark/704378/role-of-ipr-in-the-fashion-industry.
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