This article is written by Seep Gupta pursuing a Paralegal Associate Diploma. This article has been edited by Ojuswi (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
In the 21st century with the advancement of technology, IP rights are constantly evolving. They are not restricted to one single realm rather they are widening their ambit constantly. Nowadays IP rights are evolving and working on par with the fashion industry. The fashion industry is constantly emerging and developing new trends with a market capitalisation of 500 billion dollars worldwide. Because of this reason, it is very important to protect the IP rights that are associated with the fashion industry.
These include IP rights such as trademarks associated with a particular brand and the industrial design of specific apparel. IP rights are multi-faceted. In today’s world of ever-changing fashion, big brands such as Zara and H&M invest heavily in their IP rights. IP plays a major role in boosting the business of the fashion industry and contributes to its growth. For the creation of a strong and popular brand, it is really important for any organisation to monetise their IP rights for potential growth. For monetising the IP rights, the creation of an essential and reputable marketing value is crucial. This can be achieved by planning an effective marketing strategy and by allocating the brand’s resources in such a manner that will help in achieving the maximum value and growth.
In this article, we will delve deeper into the topic of how IP rights are important in the fashion industry and how they can be monetised in such a way as to boost the brand’s popularity and reputation.
What are Intellectual Property Rights
Nowadays emerging trends in the fashion industry are making a significant impact on the fashion industry globally. Fashion in today’s world is not only limited to dress and clothing. Intellectual property rights are intangible rights. Like conventional rights, they do not have any physical form. IP rights are the intellectual creation of their owner. It is used to protect an idea, a concept. The idea per se is not protected. But creations based on that particular idea can be protected. Intellectual property rights are expressive and artistic in nature. They cover a wide range of expressions in the fashion Industry.
Since the fashion industry is innovative in nature and nowadays it is not restricted to fashion wear only. IP law contributes a lot and produces a significant impact on the fashion industry. There are several aspects of intellectual property rights that are applicable in the fashion industry.
Types of Intellectual Property Rights applicable in the fashion industry
Intellectual property rights are a mix of trademarks, copyrights, patents and designs. IP law protects the goods and fashion designs from being copied or pirated. IP contributes a lot to saving the fashion designers and creators from the evils of counterfeiting and imitating.
Trademarks are signs, symbols, logos and marks that help in distinguishing one brand from the other brand. It avoids the phenomenon of “likelihood of confusion” in the minds of the consumers. Every product is recognised by its brand. The brand speaks volumes without saying a word verbally. The tick mark of the Nike brand and the jaguar of the puma brand all come under the garb of trademarks. It has the biggest impact on the fashion industry. Registering a trademark brand is very important to protect it from potential imitation. Trademark protects the brands from having an identical mark that might deceive and ward off the potential customers. Trademark is governed by the Trademark Act, 1999.
Trademark is a kind of intellectual property rights protection that comes into the picture when a product acquires a secondary meaning. It’s the characteristic of the visual appearance of a product or packaging that signifies the source of the product to consumers.
It distinguishes the visual and physical aspects of a product and traces its source. Trade dress is an aspect or sub-part of the trademark law. An example of the trade dress can be the visual appearance, configuration, packaging or interior of any product. It also includes the sound and colour of any object or product. Such as the specific design and colour of an Adidas shoe.
Copyrights and Designs
Copyrights protect the literary, dramatic, artistic and musical works. It is governed by the Copyright Act of 1956. It encourages the production and generation of more artistic works by rewarding the owner of the particular copyright via monetary gains. Copyright includes the protection of the physical and artistic aspects of a design. It does not involve protecting its functional part. On the other hand, the Designs Act, of 2000 protects the aesthetic and design part of any design including the shapes, configuration, patterns, ornaments, lines and colours.
However, many times the fine line between the design and copyright often gets blurry. The protection under the design act only extends to the protection of original designs.
Patent law protects the innovative aspect of the design in the fashion industry. For a design to be patentable, two things must be kept in mind. They are novelty and original. A design should be noble and original in nature. It is of such a nature that it is created for the first time. Also, the design should be scientifically feasible. However, patent law is not that prevalent in the fashion industry. They are more rampant in the technical field. Registering for a patent is an expensive and cumbersome process. As the fashion industry is dynamic, it does not hold much value in this industry.
How Intellectual Property Rights can help in boosting a brand’s reputation and growth
A strong and popular brand is recognised for its good marketing and strategic assets. Brand’s image plays a key role in fetching more and more customers and it increases the company’s growth too. To create a sustainable and stable brand, allocation and smart use of intellectual property rights are necessary. IP rights have the tendency to turn over a brand’s image. There are many ways in which a brand can allocate and monetise its IP rights to get the maximum output and development.
Protecting the IP rights by registration
Identifying, developing and registering intellectual property rights are quite important. Nowadays in this world of fake products, everyone wants to gain a competitive edge via resorting to cheap ways such as duplication, imitation and counterfeiting, that is why it is extremely important to register one’s IP. IP registration in the digital world is cost-effective and it is a simple process. Investing funds for IP development leads to the long-term development of a company. It also gives appropriate recognition to a brand.
Improves overall growth, revenue and reputation of a brand
A brand or an organisation should be proactive in implementing intellectual property rights solutions to generate more results and higher revenue. IP rights can be effectively used in marketing messaging. Such a trademark can help in the marketing of a brand with its name. Geographical indications can also add value to a brand’s image by boosting its perceived quality and by tracing its source. Well-defined IP rights can increase a brand’s overall reputation and can help in cementing its place in the market. It also gives a competitive edge.
Makes a brand more reliable and genuine
IP rights can increase the prestige of a brand. Well-known fashion brands such as Zara and Sabyasachi are perceived to be more reliable and genuine in the eyes of the customers. Consumers usually associate personal values with brand values. Having a strong intellectual property rights portfolio is as important as intellectual property rights registration. IP rights should be monetised in such an innovative way that they could be more appealing in the eyes of the customers. Apart from all these things, investing in a good marketing and HR team is really crucial, especially in today’s time when the entire world is digital.
Global and online recognition
Nowadays there’s cut-throat market competition. Nowadays companies need to compete in a much broader marketplace than in the past. Therefore, the brands need to expand their global and online presence. For expanding their global presence, international registration of IP rights is important. To mark their presence on the online platform effective online marketing strategy is needed. Protection of online assets such as registering for domain names is also equally important. Fashion brands can showcase their products on various e-commerce websites. This will eventually increase their target audience and will also give due credit to their creators.
Building and sustaining a brand image is important for all organisations. Intellectual property assets need to be allocated and monetised in such a way as to garner more development in the fashion industry.
Relevant case laws
Louis Vuitton vs. My Other Bag
This is a very famous case related to copyright infringement. In this case, the brand name.’ My Other Bag’ made a parody tote bag with a photo of Louis Vuitton printed upon it. Louis Vuitton sued my other bag under copyright infringement and design theft.
The court in this case stated that the parody accounts can state two simultaneous and contradictory meanings. The petitioner Louis Vuitton contented that the defendant tried to mimic their copyrighted design. In its defence, the petitioner also contended that it is trying to protect its IP rights. Since the defendant’s product was a parody product, hence the court did not approve the charges.
Puma vs. Forever 21
This case is related to copyright and design infringement. Puma suede forever 21 and the latter one has copied the special edition of shoes designed by the famous singer Rihanna under the brand name puma. Creeper Sneaker, Fur Slide and Bow Slide were part of Fenty’s collection which were personally designed by the singer Rihanna.
In this court, the court ruled that just because a specific celebrity is related to or has endorsed a particular product, it does not mean that the product will come under the garb of copyright production. Copyright is granted on the basis of design uniqueness and also based on a particular design’s originality and novelty. Rihanna’s name was nowhere mentioned in the suit and in this case.
In a nutshell, it can be concluded that intellectual property rights are the backbone of the fashion industry. Fashion and IP both go hand in hand. They both coexist and one cannot sustain without the need for the other. IP law is needed to enlarge the monopoly of any fashion design and acts as a safeguard which protects any design from the evils of duplicity and plagiarism.
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