This article has been written by Namrata, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

The fashion industry is evolving rapidly over time. In the current times, fashion is certainly more than just clothing and attire. Intellectual property has a big role to play in the substantial development of the fashion industry. The intellectual property law has the capability to secure various creations in the fashion industry including components of fashion design, artistic and literary work, images and symbols that were used in commerce and trade. However, it should be taken into account that there have been short insights into the types of intellectual property and the applicability it has on the fashion industry. This article also sheds light on the various improvements that are required in the intellectual property law to offer better protection to numerous products in the fashion industry. 

Intellectual property and the fashion industry 

The primary purpose of intellectual property law is to offer protection to the ideas and concepts of a person, be it in the fashion industry or any other industry. It should be noted that an idea is not protectable, whereas the artistic expression of the idea can rightfully be protected and the same is guaranteed by the intellectual property law. Intellectual property law is basically a mix of copyright, trademark and patents. Another significant aspect to be taken note of is that the fashion industry is not just restricted to clothes, whereas it also includes accessories, footwear, jewellery etc. As the fashion industry is rapidly evolving in recent times, there arises a dire need to obtain the protection of the products in terms of their creativity and other such processes invested therewith. 

Challenges posed to the fashion industry in terms of protection of IP 

Various Indian designers including JJ Valya, Ritu Kumar, Rahul Bal have been successful in obtaining protection of their fashion designs. The numerous challenges that are encountered in the fashion industry in terms of IP protection will be discussed in the forth-coming segment of this article through the bifurcation of numerous aspects that fall under the ambit of IP:

1. Trademark law and the challenges posed to the fashion industry- One won’t be wrong in stating trademark law has a humongous impact on the fashion industry. Trademark is the logo and the brand. However, the logo and the brand can be more than just a name. Most of the prodigious brands like that of Ralph Lauren, H&M, Tiffany and Co., Calvin Klein, Gucci, Kate Spade, LOUIS VITTON, and Channel etc are all well-known brands and the same have been trademarked. The prime intention behind obtaining a trademark is to evade confusion in the marketplace among the customers. 

The failure of offering protection to the unique designs with respect to intellectual property is the prime issue behind the susceptibility of the fashion industry to any kind of violation when it comes to intellectual property law. As a consequence of the same, various instances have come to light whereby a number of designers have sued for the infringement of their fashion designs. The same has been discussed in the form of case laws in the forth-coming segment of the article.  

a. Section 2(zb) of the Trademark Act, 1999– This section states that a trademark is something that is capable of being represented graphically and at the same time, it can also be distinguished from the goods and services of one person from another. This can also include the different shapes of the goods, a combination of colours and even their packaging. In addition to this, the trademark law also offers protection even to the trade dress which includes under its ambit, packing of the product. However, the courts in various instances have dragged the attention of the public towards the fact that product packaging forms an important aspect of design in fashion apparel. The same has been discussed in the latter part of the article. The emphasis was also put on the fact that trade dress is something that involves shape, colour combination, graphics, texture, size and even particular techniques of sales etc. and hence it finds protection being offered to it under the trademark law. 

Trademark is something that is beyond just brand and logo. This aspect will be discussed in the following segment of the article by making a reference to various case laws:

• Registration of Three Stripes by Adidas – Adidas, the renowned sports brand had applied for the registration of the Three Stripes. However, the European court had to rule against the appeal made by the company to trademark its product further. This decision of the court came in the backdrop of the rising patent concerns in the sporting industry. The court in its final ruling held that the trademarked stripes cannot go sideways. 

• Bettina Liano’s registration for the pocket stitching on the clothes as a trademark– Bettina Liano had registered for the unique pocket stitching on its garments. However, the British fashion house, Burberry already held the trademark rights in both Burberry check pattern and even ‘Burberry’. 

• Can a trademark be made applicable even to colour?– In order to understand this concept, one can analyse the case of Christian Louboutin v. Yves Saint Laurent. This is considered to be a landmark case, which throws light on the aspect of trademarking colour. Christian Louboutin happens to be a French designer who has been trademarked in US and even in many other countries. The court gave a nod for the colour to be rightfully trademarked. Hence, the red colour associated with the shoe has been trademarked and one can identify that the red colour of the shoe with that of Christian Louboutin. This can rather be termed as a high definition of a trademark. Many other companies have also established the trademark rights of goods in colour. These companies include – Ferrari’s red, Tiffany and Co.’s blue, etc.  

From the aforementioned analysis, it can be rather concluded that trademark isn’t something that is just restricted to brand and logo, it includes various other components under its ambit ranging from designs, components and features of the fashion apparel. 

b. Designs and Copyright and the Challenges to the fashion industry– The primary purpose of copyright is to increase artistic creation and expression. This is done by way of giving creative control to the owner of such a work. Once there has been a creation, drawing, music composition or be it any design, creation etc. the author of such a work can claim copyright over such work. Copyright can be granted to dramatic, literary, artistic, original and musical work. Speaking about the Indian Copyrights Act, 1957, it can be stated that there is protection granted to the fashion designs when fashion designs are included under artistic works. 

2. The Copyrights Act, 1957 states that Artistic work can include under its ambit, a drawing, painting or sculpture. It can even include a photograph or an engraving (this is irrespective of such a work containing or not containing artistic quality). 

a. Section 15 of the Copyright Act, 1954– This section states that copyright will not be made applicable on any design which has been already registered or has the capability of being registered under the Designs Act, 2000. A significant point to be taken under consideration here is that the idea itself cannot be protected, whereas the design of the clothing or the dress can be protected under copyright. 

For instance, considering the example of Diane Von Furstenberg, the wrap dress itself is not protectable, whereas the design of the dress is protectable. The next segment of this article will look into certain important case laws in terms of the fashion industry:

• Rajesh Masrani v. Tahliani Designs– This was one of the cases where the Delhi High Court took into consideration the designs of the clothing. The plaintiffs, in this case, alleged that the drawings which were made in pursuance of the development of accessories and garments were artistic works Section 2(i)(c) as under the Copyright Act, 1957. In addition to this, the plaintiff even claimed that the embroidery and the printed patterns on the fabric also came under the garb of artistic work. In response to the claims put forth by the plaintiffs, a single bench judge issued an injunction order in favour of the plaintiffs.  

• Star Athletica v. Varsity Brand– This is considered to be a landmark case in terms of IP protection with respect to the fashion industry. In this case, an employee of a company made the uniforms of the cheerleaders. Further, he went to a different country and made the cheerleader uniform there and the designs of these uniforms were similar to that stitched in the older company. An important question as to whether a series of shapes and styles on the clothing can be protected was dealt with in this case. The court, while passing a judgment, in this case, ruled that copyright will rightfully protect the design of the clothing but not the cut of the clothing. 

b. Piracy and its prevalence in Design and Copyright Industry- One won’t be wrong in stating that piracy is a common phenomenon in the design industry. In simple terms, piracy can be explained as unauthorized copying of the original designs. 

In order to provide robust protection to the designs of the fashion designers, the following categories of IP:

• The Designs Act, 2000 provides protection to the designs under the class 03, 05, 02, 10 and 11of the third schedule. 

• The Copyright Act, 1957 offers protection to the colour combination. 

• The Trademark Act, 1999 offers protection to the logo designs.

• The Patents Act, 1970 and Designs Act, 2000 offer protection to material or fabric that is used in the design or art. 

Patents protection and the challenges posed in the fashion industry

The inventions that can be integrated into products are provided protection under patent. Speaking about the fashion industry, it can be stated that various products have been granted patent protection. Some of the examples of such products have been discussed here. For instance, the technologies that were used in UV filtering textiles are water-repelling and fire-resistant, wrinkle-free fabric and even the manufacture of CROCS shoes. 

An important point to be noted here is that patents cannot be granted to artistic designs. Hence, most fashion designers do not opt for the protection of the apparel through patents. Also, fashion is a dynamic industry and a new change is brought about every now. Due to this, getting patents does not seem to be a better option for fashion designers to protect their products. Further, obtaining a patent also seems to be highly expensive unless the same fashion is repeated every year. 

However, speaking of the technological aspect, inventions can give a great push in the already existing highly competitive fashion market. A legal right is granted to the inventor by way of a patent. This right will be granted to the inventor as a legal right and by way of the same, he can protect his invention. Protection can also be granted to the design, product or even the process related to the fashion designs. Lastly, from this discussion, it can be concluded that an inventor can rather secure and safeguard a novel invention and its rights to its intellectual property. 

Conclusion 

It can be concluded that there exist numerous loopholes in the protection of the fashion industry in terms of IP. An important observation that can be drawn from this is there exists a dire need to reconsider the already existing protective measures in the fashion industry. There is a need to revamp the IP protection of the fashion industry. In addition, fashion designers are also required to educate themselves with regard to IP protection and determine the best kind of protection that can be made available to their products. Lastly, to enable a nation to attain prosperity through its intellectual property, individual rights need to be sensitized. The same can be achieved by addressing the existing loopholes in the protection of the fashion industry through IP. 

References

1. Anjali Srivastava, ‘Intellectual Property in Fashion Industry’, (23rd February 2019) https://www.brandstock.com/intellectual-property-in-the-fashion-industry, accessed on 23rd February 2021. 
2. Chadha and Chadha Intellectual Property Law firm, ‘Significance of Intellectual Property in fashion industry’, (15th January 2020) https://www.lexology.com/library/detail.aspx?g=3011b365-d004-402f-8a62-1a52265787b0 accessed on 21st February 2021. 
3. Shivani Vora, ‘Fashion and Intellectual Property’, (3rd August 2019) http://www.legalserviceindia.com/legal/article-3317-fashion-and-intellectual-property.html accessed on 22nd February 2021. 
4. Saranash Chaturvedi, ‘India: Fashion Industry and Challenges for IP Protection’, (12th November 2020) https://www.mondaq.com/india/trademark/1024232/fashion-industry-and-challenges-for-ip-protection, accessed on 22nd February 2021. 
5. Amit Tiwari, ‘Fashion industry and Challenges to IP Protection’, (21st December 2019) https://iiprd.wordpress.com/2021/01/09/fashion-industry-and-challenges-for-ip-protection/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration,  accessed on 22nd February 2021. 

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