This article has been written by Anjali Singh, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
“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. – Coco Chanel
India is a land of diverse cultures, and clothes speak a lot about one’s culture. The Indian apparel industry generates trillions of dollars and provides employment to many people. It’s a fascinating combination of aesthetics and art. Clothes are no longer limited to functional usage but have transgressed boundaries to become artistic expressions. The artistic or the innovative component is what separates the past from the current in fashion. The abundance of ‘artistic factors’ over ‘utility factors’ makes IPR protection predominantly important in the fashion industry.
Legal provisions protecting fashion laws
Copyright Act of 1957, the Designs Act 2000, the Geographical Indication Act of Goods Act, 1999, and Trademarks Act,1999, are some of the laws that provide protection in some relevant areas of the fashion industry.
Once a design is brought into its materialistic form from mere imagination, and its originality is apparent from its existence, it automatically finds its place in the category of artistic work under Section 13 of the Copyright Act, 1957. Section 15 of the Copyright Act is an important provision regarding copyright in designs that are registered or are capable of being registered under the Designs Act, 2000. It states that:
- Firstly, a design if registered under the Designs Act 2000, will not qualify for the protection under Copyright Act.
- Then copyright in any design, which is capable of being registered under the Designs Act but which has 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. Thus, as per the Copyright Act, 1957, design registration and copyright over an article cannot co-exist.
Section 2 (d) of the Design Act, 2000 lays down the definition of design. According to this provision, “design” means only the features of shape, configuration, pattern, ornament, or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye with certain exceptions.
Protection under the Trademark Act, 1999
Stringent punishments have been enshrined under Section 103 and Section 104 of the Trademark Act 1999, for trademark infringers, who are caught for falsely using trademarks and selling goods to earn profits.
India is a diverse country and is affluent when it comes to traditional knowledge. From Kashmir’s Pashmina to Tamil Nadu’s Kanchipuram Silk, and from Muga Silk of Assam to Surat Zari of Gujarat, India’s traditional fashion assets hold a high economic value and are not just valuable to the national market, but hold enough value in the international market as well. Geographical Indication’ (GI) has features that effectively respond to the needs of indigenous and local weavers, knitters and designers, It accentuates the amalgamation of efforts put by the indigenous workers, the value of traditional knowledge, favorable weather conditions. It is also pertinent to note that the Kutch embroidery from Gujarat, Sujini embroidery work from Bihar, and Kasuti Embroidery from Karnataka have all been granted GIs. The fashion foundation of India [FFI] is putting consistent efforts to protect IP in the fashion industry
An interesting observation
The definition of ‘design’ can be broken down and understood from the Designs Act 2000. According to the provision: ‘A design is something applied to an article.’ So, it can be interpreted that design and article are two separate entities, for instance, if a dress is made using a distinctive design then it fulfills both the conditions that are of a design and an article, but if a dress is stitched directly by relying on some ideas then only one condition is fulfilled, that is of an article and not of design in that scenario it doesn’t qualify as a design, however, it may find its place as ‘original artistic work’ under the Copyright Act. The vagueness in the concept of design leaves it open to different interpretations.
Protection is granted only to some components of the fashion industry. To stay afloat in the fashion industry, being up to date with the latest trends is tremendously important. The onerousness of registering a design makes the whole process time-consuming. Without registration, the creator remains incapable of using the product as desired. Copying of the mere designs and altering the fabric and materials used makes an impression that the product is not copied/infringed thus, availing the remedies for piracy becomes troublesome under the present legislation.
Knockoffs are an unlicensed copy of something and with a large number of knockoffs being produced and widely dispersed in different street markets, it becomes infeasible to initiate legal proceedings against infringers.
Substantial case laws
Microfibres v Girdhar
Parties, in this case, were engaged in the business of upholstery fabrics. Microfibre’s artistic work was substantially reproduced by Girdhar, however, because of the applicability of Section 15(2) of the Copyright Act, protection under copyright had ceased. Microfibre had reproduced them more than 50 times through an industrial process. And since Microfibres had not applied for registration under the Designs Act, the designs were unprotected by the IP regime, held by the single judge bench
Rajesh Masrani v Tahiliani Design
In this case, an interim injunction was issued in the favour of the plaintiff, as it was alleged that the designs produced while developing clothes and accessories including the embellishments and patterns embroidered and printed on the fabric resulting in the finally produced garments, were artistic works under Section 2(i)(c) of the Copyright Act,1957.
Ritika Private Ltd. v Biba Apparels Private Ltd.
Ritu Kumar (a leading fashion label) complained about the imitation of its fashion designs by a company. The Delhi High Court citing the Microfibres Inc. case held that once the copyrighted works of the plaintiff were applied for making of dresses, and production of the dresses exceeded 50 in number, the plaintiff lost out in ownership of the copyright works as the plaintiff had not secured registrations of the designs, drawings, sketches, under the Designs Act as implicitly laid down under the Copyright Act. Hence, the plaintiff could not ask for an injunction of the infringing activity and the case was dismissed.
But in an earlier case, Rajesh Masrani v. Tahiliani Design Pvt. Ltd., as the designs were not reproduced more than 50 times the infringing activity of copying was injuncted; thus the protection under the Copyright Act remained available
Basic understanding of the interplay of laws applied
Suppose a person ‘X’ creates an ‘original artistic work’ say ‘A’ which is a subject matter of copyright under Section 2(1)(c) being an artistic work. X creatively applies for the artistic works on apparel resulting in a new creation ‘Y’. Now, if Y is produced more than 50 times then it loses its protection under the Copyright Act, but the ‘Original artistic work’ ‘A’ – still retains protection against infringement
Indian streets and markets are famous among people looking for rich designs at feasible prices, which are the first copies of the famous designs. For example, celebrities’ bridal lehengas are most asked for in some well-known street markets, largely popular in Delhi. These streets offer employment to many, but their whole business ideology is based on design piracy.
Despite several legislations to constrain unauthorised imitations, piracy and other acts cause an infringement of intellectual property. The inherent nature of this industry makes piracy inevitable. The ones who create the designs and enter into the market to earn profits by coming up with artistic representations suffer a lot, as their ideas get stolen just after it makes its appearance.
It has been observed that the creators more often than not fail to check if their IP utilises the lawful course, and infringers walk away without any penalty imposition. Fashion laws are a compilation of various laws including business finance and commercial laws, civil rights, consumer culture, antitrust and competition law, technology, labour laws for factories, privacy, international trade, and counterfeiting, and most importantly intellectual property. Rightful application of laws is as important as making provisions of the acts and the same should be done cautiously. The infringers shouldn’t be given a chance to leave the legal battlefield without bearing costs and penalties, as protecting the rights and interests of the creative designers needs to be prioritized, to support innovative growth.
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