IP in fashion industry
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This article is written by R Sai Gayatri, from Post Graduate College of Law, Osmania University. This article deals with the various areas of the fashion merchandising industry and the need for definite fashion law in India.  

Introduction 

‘Fashion’ – what comes into our minds when we hear this word? Luxurious apparel? A certain signature style of someone? Our beloved cinema industry maybe? Fashion has become indispensable these days. We all unconsciously get involved in the world of fashion. Well, who doesn’t want to look good, eh? You are judged based on your fashion sense, be it regarding your clothing or any process/series that you follow. It all boils down to something as simple as looking ‘presentable’ for carrying out your daily work.  

We cannot say that fashion is just about clothes, it is much more than that. A particular mode of action, a custom or manufacturing something as per one’s ideology or liking is all considered as fashion too. Now that we know the word ‘fashion’ has such a wide coverage of various topics, let us understand an essential topic when it comes to fashion and that is fashion merchandising. 

Understanding Fashion merchandising 

From the information above we know what fashion is, but for a clearer understanding here are two definitions:

  • As per the Cambridge dictionary – Fashion is a style that is popular at a particular time, especially in clothes, hair, make-up, etc.
  • As per Collins’s dictionary – Fashion is the area of activity that involves styles of clothing and appearance. If you do something in a particular fashion or after a particular fashion, you do it in that way. If you fashion an object or a work of art, you make it. 

Merchandising refers to the planning, buying and selling of merchandise. It is the part and parcel of retailing. Such merchandising takes place under the aegis of a certain brand or company. Merchandising is a continuous process that involves the following steps and is known as the ‘Merchandise Cycle’:

                                       

Fashion merchandising refers to the strategy which helps to provide the right merchandise at the right time at the right price in the right area and in the right amount – these steps are commonly known as the 5Rs of merchandising or the merchandising rights. A properly planned fashion merchandising is imperative to gain maximum profits. It is used by manufacturers as well as retailers. Fashion merchandising is involved in four steps, they are – manufacturing, buying, promoting and selling goods. This process is taken care of by a fashion merchandiser. In simple terms, a fashion merchandiser is like a tool that turns an idea of fashion into an actual piece of clothing. He helps in developing an idea into a design and with the help of technology, he proceeds with the planning, production, promotion and distribution of the goods as per the consumer’s interest.

Fashion merchandising is done as per the consumer’s need and demand. It involves choosing a design, then choosing a particular cloth for such design, fixing a price for such product and finally promoting the product for sales. Fashion merchandising is not limited to fashion alone, it also involves business aspects that depend upon marketing strategies. 

Categories of fashion merchandising 

There are three main categories when it comes to fashion merchandising:

Visual merchandising

This type of merchandising encompasses the presentation of products in such a manner that they will attract the customer’s interest. Visual merchandising can be noticed at the entrance areas of shops/outlets where mannequins are put up with perfect outfits that match a certain occasion such as a particular festival or are simply dressed very well to catch attention. Here, a visual merchandiser plays a key role in gaining maximum profits by making use of marketing techniques and strategies. For example, when you go out shopping during season change you will see that there is a sale going on in almost all fashion outlets such as winter sale, summer sale, monsoon sale, etc – these are the marketing techniques employed by a visual merchandiser to capture customers and gain profits.

Retail merchandising 

It is crucial to make sure that the right kind of product is available at the right place at the right time at the right price and quantity. Let’s take a simple example here, now that we all use masks to curb the effect of the Coronavirus, imagine if these masks were available at very high prices or only at select stores or there is a shortage of production – it would be a problem to the customers and as a result, it will affect a company in accruing profits. Retail merchandising comes into play to avoid such risks, the merchandiser works in sync with the forecast on prevalent trends, arranges the stock accordingly and supervises the whole performance. A merchandiser also carries out the responsibility of distributing and delivering the products by dealing with the suppliers. It is the job of a merchandiser to decide prices for the products. They must make sure to maximize the profits, monitor the promotions and performance. Thus, in retail merchandising, the work of a merchandiser is important as it affects the profitability of the company.

Export merchandising 

Export merchandisers are usually associated with trading where all the sales and marketing activities take place intending to make as much profit as possible. Retail merchandisers and export merchandisers work hand-in-hand as they both mainly deal with the commercial aspect of the products. Export merchandiser is classified into four ways – they are: 

  • Sample Merchandiser
  • Production Merchandiser
  • Sourcing Merchandiser
  • Product Development Merchandiser 

An overview of the legislation governing the fashion industry in India 

Fashion is a language that is understood by people all over the world and it is spoken in many different ways. The speakers here are the designers who turn their imagination into reality and bring various designer clothes into the market for the consumers. As we know, there are millions of designers around the world who design millions of clothes with different shapes, colour patterns, series, etc every year, so, there is a very high possibility of some design getting copied, counterfeited, knocked off or ‘lifted’ in any manner. Is there a way to safeguard the intellectual efforts that a designer puts in while designing a particular outfit? Yes, there are certain legislations that govern the colourful fashion industry. Let us know about them in detail. 

The Copyright Act, 1957

An artistic work that is done on paper such as the sketches of the design, is protected under the Copyright Act, 1957. However, the artistic work must qualify as the original work of a person as per the Copyright Act, 1957 and it must be proved that the product’s design has not been produced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person. The vast and detailed approach of the Copyright Act, 1957 in protecting the work of a designer is appreciable. 

The Designs Act, 2000

This act facilitates protection to the non-functional aspects of a design having a certain appearance. The Designs Act, 2000 deals with the shape of a garment, its colour pattern, lines and composition. The Design Rules, 2001 provide an exhaustive list of products and articles of which an application can be made to the controller. Such design right(s) remains in force for a period of ten years that may extend for another five years in certain conditions. The Designs Act, 2000 mentions that any design protected under the said Act shall not include trademarks, property marks and artistic works of the Copyright Act, 1957. 

The Trademark Act, 1999

Have you ever noticed the distinctive logos of companies such as Louis Vuitton’s ‘LV’, Dolce & Gabbana’s ‘D&G’, Nike’s ‘tick’ symbol, etc? These logos help you recognize that a particular product belongs to a particular brand and they distinguish their products from other products available in the market. Such logos or brand names are defined and protected under the Trademark Act, 1999. A trademark may be any name, design, word, symbol, or even any colour combination, used in commercial areas to differentiate and recognize goods. Thus, the Trademark Act, 1999 protects not just the logos and brand names of companies but also the unique features of a product.  

The Patents Act, 1970

Getting a patent in the fashion industry has become a new normal in India. The Patents Act, 1970 was usually not associated much with the fashion industry but as the technology grew, the companies started getting their product manufacturing process patented as it involved technological aspects which are unique to them. For example, the company Tiffany & Co. has a design patent for a key pendant. A Patent grants protection for fourteen years for a design patent and twenty years for a utility patent from the date of filing and after the protection expires, it falls under the public domain and any person can exploit it commercially without infringing the patent. 

The future of fashion retail through online shopping 

It is a known reality that the retail industry is largely being undermined by online shopping, all thanks to the internet. Gone are the days when the whole family used to wait for a holiday to go shopping in the busy local markets. Online shopping has changed the approach of customers towards buying clothes. It sounds reasonable as well. Who doesn’t want to get clothes of their choice delivered to their doorstep with the ease of just a few taps or clicks on their mobile phone or computer? And not to forget the zillions of offers and options that are provided to choose from.

The customers also do not worry about the quality of the product as most of these online shopping sites provide return, refund and exchange policies. Now when so much is available at the comfort of one’s home why would he choose to go out and shop? Thus, it seems to be inevitable to avoid the fact that online shopping has tremendously affected fashion retail in recent times. But as every coin has its two sides, online shopping has its drawbacks too. It is essential to maintain the smooth interface of these shopping sites, in case the site crashes even for a little while the company may lose many potential customers. Driving traffic to these sites needs advertising which again needs money, a separate workforce must be allotted to take care of the business online, no matter how advanced the technology is, it will still be technology and so there will be technical issues that might affect the business of the company.

Online shopping sure gave a break from the traditional shopping methods but it all boils down to the customer’s needs and demand which makes online shopping and fashion retail co-exist in the market. So, it is safe to say that though online shopping has become the go-to option of many customers it does not mean that the entire fashion retail will be swept out. Fashion retail is just as needed as online shopping is. 

Challenges faced by the fashion designers in the current scenario through case laws 

Fashion designers come across various challenges but the most prevalent and pinching challenge is that of fashion design piracy. It means and includes the unlawful copying of the original work of a designer and producing similar products. Therefore, the above mentioned Intellectual Property Rights laws are important to protect the work of such fashion designers. Let us understand this concept through few case laws.

In Star Athletica v. Varsity Brands, varsity brands manufactured cheerleading costumes and it has two-dimensional and three-dimensional graphics registered for printing upon the costumes. One Star Athletica company was sued for copyright infringement as they copy-printed a design of the Varsity Brands on their cheerleading costumes. The court was to decide whether two-dimensional and three-dimensional graphics are to be considered under copyright or not if such graphics are printed upon some material. The Court that any kind of two-dimensional and three-dimensional graphics can be differentiated and recognized, hence they shall be having independent copyright. The court further mentioned that any design capable of being depicted whether in pictorial form or sculptural form, when separated from the whole product shall be considered to be protected under the copyright.

In Rajesh Masrani v. Tahliani Design, the plaintiff had alleged a copyright infringement based on the drawings which he had made in the course of manufacturing clothes and accessories. He contended that the designs were ‘artistic works’ under Section 2(i)(c) of the Copyright Act, 1957. The patterns printed along with the embroidery on the cloth were also alleged to be artistic works, leading to a fully designed product. The court issued an interim injunction in the plaintiff’s favour in this case.

In Louis Vuitton v. My Other Bag, a company named “My other bag” made a parody ‘tote’ bad upon which the picture of a Louis Vuitton bag was printed. The said company was sued by Louis Vuitton for copyright infringement. The court stated that a parody product must express two things i.e, the actual product is an original but the image printed on it is a parody. This condition was satisfied in the present case. Since the product was original but the image was a parody the charges pressed by Louis Vuitton were not approved.

In Puma v. Forever 21, Puma had filed a suit for design and copyright infringement against the company Forever 21. Puma had alleged that Forever 21 had copied the design of a certain shoe that had been designed by Rihanna Fenty, who is a celebrity. The copyright issue was that the shoe was designed by a celebrity and was accordingly endorsed under her name. The interesting part here is that the court observed that the name Rihanna was nowhere mentioned in the suit and there was no such involvement of her in it either. As a result, the court denied trade dress infringement based on the reason that merely because a celebrity was associated with a product or its endorsement does not mean that such a product has copyright protection. However, copyright protection was granted by the court for the design aspect of the shoe.  

Ritika Private Limited v. Biba Apparels Private Limited

Plaintiff’s Arguments 

The plaintiff, in this case, filed a suit claiming his copyright over certain sketches and drawings which are used in the manufacturing of dresses that are sold by the plaintiff having its trade name ‘Ritu Kumar’. Here, the plaintiff contended that he is the first owner of the copyright upon all the products manufactured under the plaintiff’s company including the designs, drawings, sketches, etc. In this regard, the plaintiff seeking an injunction bought a suit against the defendants to restrain them from imitating the plaintiff’s garments and prints. However, it is to be known that the plaintiff’s designs had not been registered under the Designs Act, 2000.

Defendant’s Arguments 

The defendants argued for dismissal of the suit based on Section 15(2) of the Copyright Act, 1957. It states that once a copyright in a design is applied to some material through an industrial process by the owner of the copyright or with his license or by any other person for more than fifty times, then the copyright ownership ceases to exist.

The issue raised before the Court  

Whether once the copyrighted works of the plaintiff are applied for manufacturing of dresses, and the production of such dresses reaches more than fifty units then the plaintiff loses the ownership of copyright works or not, since, the copyright designs of the plaintiff are capable of being registered as designs under the Designs Act, 2000 but the plaintiff had not registered the same under the Designs Act?  

Application of law by the Court 

The court in the present case referred to  Microfibres Inc. v. Girdhar & Co. & Anr. case and stated that if a design has not been registered under the Designs Act, then the said design will lose its copyright protection as per the Copyright Act, 1957 and the copyright will exist only till the copyright is applied to an article by an industrial process up to fifty times in number. After crossing the said limit, the design shall not be protected and regarded as copyright work under the Copyright Act, 1957.

Judgement of the Court 

Further, it was also stated from the facts that the defendant is manufacturing dresses by applying the design through industrial means and process. There is no printing of the same copyrighted work of the plaintiff on the dresses manufactured by the defendant. Therefore, the court held that there was no copyright infringement done by the defendant as per the Copyright Act, 1957 and accordingly the plaintiff was not allowed to claim any design protection. 

The need for definite laws in the fashion industry 

The challenges faced by the designers in the fashion industry are not just limited to the clothing or the designs and so the law must also not be limited to copyrights, trademarks, patents or designs. Even though three different legislations govern the fashion industry in India, there is a need for dedicated, detailed and comprehensive fashion law. The fashion industry is booming in the Indian market and there is cut-throat competition in producing the best apparel and gaining maximum profits through it.

In the process of being the best and earning well, many people employ unlawful means to win over one another. Fashion forgeries, counterfeiting, lifting, knockoffs, etc are just at the surface level when it comes to the problems a fashion designer is entangled in. If looked into more deeply and comprehensively then maybe more problems will be known of. This is where the need for a separate fashion law arises. If there is a law that is wholly devoted to protecting and safeguarding the rights and interests of the designers then it will lead to the establishment of a sense of awareness among the designers that they completely fall under the purview of such law, they may be protected and they may also be punished under such law. They can approach the court of law with their issues in a much better way with a lot more legal clarity.

Through definite laws in the fashion industry, both the sellers and the buyers will be at an advantage. The present scenario is such that the problems arise between designers and sellers or sellers and sellers but no one holds the main culprits accountable and they are the buyers. It is for the buyers that all this imitation production takes place. If it was not for the buyers then maybe the Sarojini market in Delhi and Linking Road in Mumbai would not be as famous. The law must hold sellers as well as the buyers equally accountable for their acts, therefore we need definite fashion law in India. 

Conclusion 

“Fashion goes in only one direction – forward – and I am a firm believer in thinking that way too.” – Anna Wintour.

The fashion industry will never cease to exist, it would rather reach much higher levels and spread its presence in the Indian market. So if fashion moves forward then why shouldn’t the law move forward? For a fairly competitive fashion industry to exist within the country there is an indispensable need for definite laws in fashion industry. It is high time that we recognise the issues faced by fashion designers and address the need for fashion laws in India. 

References 


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