Navigating the Runway: Intellectual Property Rights in the Fashion Industry
P. Saranya, Senior Associate-IP Practice
Introduction:
In the rich tapestry of India’s diverse cultural heritage, the fashion industry stands as a vibrant and dynamic expression of creativity. Intellectual Property play a crucial role in protecting the unique designs, traditional motifs, and innovative creations that define the Indian fashion landscape. The fashion industry is not only a dynamic and trend-driven sector but also a hotbed for intellectual property issues. Designers, brands, and retailers navigate a complex legal landscape to protect their creative works, trademarks, and innovations. In this article, I would like to shed light on the intricacies of IPR within the context of the country’s fashion industry, covering copyrights, designs, trademarks, and the challenges posed by counterfeiting. And also, we delve into the intricacies of Intellectual Property Rights in the fashion industry, examining recent case laws and relevant sections of IP law that impact this creative and competitive field.
1. Copyrights: Preserving Artistry in Fabric:
In India, copyrights play a significant role in protecting original artistic and literary works, including those in the fashion domain. While garment designs themselves may not be directly protected, original prints, embroidery patterns, and fabric designs can be eligible for copyright. The Copyright Act of 1957, amended in 2012, governs these protections. Recent developments in Indian copyright law, including the case of Ritu Kumar v. Biba Apparels Pvt. Ltd., 230 (2016) DLT 109 before the Delhi High Court, which emphasized the importance of originality and the threshold for copyright protection in the fashion context. This case dealt with the alleged infringement of Ritu Kumar’s copyrighted designs by Biba Apparels. Copyright law protects original works of authorship, and while fashion designs are generally not afforded copyright protection, certain elements such as fabric prints, logos, and graphic designs may be eligible. In Star Athletica, L.L.C. v. Varsity Brands, Inc., the U.S Supreme Court clarified the separability test, providing guidance on when certain design elements within clothing may be eligible for copyright protection. Section 102 of the Copyright Act outlines the subject matter of copyright, emphasizing originality and creativity.
2. Design Protection: Navigating Aesthetic Innovations:
Design protection is integral to safeguarding the unique aesthetic elements of fashion creations in India. Under the Designs Act of 2000, designers can register their creations, preventing unauthorized reproduction or imitation. One of the primary concerns for fashion designers is the protection of their unique and innovative designs. Design patents play a crucial role in safeguarding the visual aspects of fashion creations. A notable case illustrating the significance of design patents is Apple Inc. v. Samsung Electronics Co.(2012), where the focus was on design patent infringement. While this case involved electronic devices, the principles can be applied to fashion designs. A recent case such as the dispute between Crocs Inc. and Liberty Footwear Company, have highlighted the significance of design registrations in resolving disputes over design infringement. The Hon’ble Delhi High Court in its judgement dated February 8, 2018, cancelled the registered design of Crocs Inc. USA and dismissed the claim of piracy of design made by the defendant Company. The Court held that, ‘it is necessary for protection of a registered design that the registered design must be an Intellectual Property Right created after application of sufficient time, labor, effort, etc. and that there must be sufficient newness or originality i.e., existence of requisite innovation and that trade variations of known designs cannot result in newness and originality.’
3. Trademarks: Building Brand Identity:
Trademarks serve as the cornerstone for building brand identity in the Indian fashion industry. From iconic logos to distinctive brand names, trademarks provide legal protection against infringement. The Trademarks Act of 1999 governs the registration and protection of trademarks in India. The case of Raymond Limited v. Raymond Pharmaceuticals [2010 (44) PTC (Bom)] underscores the importance of trademark registration and the likelihood of confusion in the fashion market. The fashion industry is particularly vulnerable to counterfeiting and copying. Registering trademarks provides legal grounds for taking action against counterfeiters and those who attempt to replicate or imitate a brand’s designs. This protection is crucial for maintaining the exclusivity and integrity of a fashion brand. Trademarks are assets that can appreciate over time. As a fashion brand grows, its trademark gains value, allowing for market expansion and potential licensing opportunities. Licensing agreements enable a brand to extend its reach through collaborations with other companies while maintaining control over its image. Trademarks provide legal protection, allowing fashion brands to enforce their exclusive rights in court. In case of infringement, a trademark owner can pursue legal action, seek damages, and obtain injunctions to prevent further unauthorized use of their brand.
4. Geographical Indications: Protecting Traditional Craftsmanship:
India’s fashion industry is deeply rooted in traditional craftsmanship and indigenous materials. Geographical Indications provide protection to products associated with a particular region, emphasizing their unique qualities. The protection of handloom products such as Banarasi silk and Kanchipuram silk sarees as GIs ensures the preservation of traditional artistry and supports local artisans.
5. Challenges of Counterfeiting: Legal Strategies for Enforcement:
Counterfeiting remains a persistent challenge in the Indian fashion industry, affecting both established brands and emerging designers. Legal strategies for enforcement, including civil and criminal actions, are crucial in combating counterfeit goods.
Challenges of Counterfeiting in the Fashion Industry:
- Global Nature of Counterfeiting:
Counterfeiting is often a global issue, with fake products circulating in various countries. Coordinating legal efforts across jurisdictions becomes complex, as legal systems, enforcement mechanisms, and intellectual property protection may vary.
- Sophistication of Counterfeiters:
Counterfeiters continually evolve their tactics, becoming more sophisticated in replicating designs, labels, and packaging. This makes it challenging for both consumers and law enforcement to distinguish between genuine and counterfeit products.
- Online Counterfeiting:
The rise of e-commerce has facilitated the growth of online counterfeiting. Counterfeiters can easily set up fake websites, sell products through online marketplaces, and operate across borders, making it difficult to trace and shut down illicit operations.
- Supply Chain Infiltration:
Counterfeit goods can infiltrate the legitimate supply chain at various points, from manufacturing to distribution. Identifying and eliminating these points of entry is a complex task, requiring collaboration with suppliers, manufacturers, and distributors.
- Limited Resources for Enforcement Agencies:
Law enforcement agencies often have limited resources to tackle counterfeiting. Prioritizing and allocating resources to address the vast scale of counterfeiting in the fashion industry can be a significant challenge.
- Consumer Awareness:
Consumers may unintentionally purchase counterfeit goods, especially if they are skillfully replicated. Lack of awareness about the prevalence of counterfeiting and its negative consequences can hinder efforts to combat the issue.
Legal Strategies for Enforcement:
- Trademark Registration and Monitoring:
Registering trademarks is a fundamental step in protecting a fashion brand. Regular monitoring of the market, both online and offline, helps identify potential infringing activities. Prompt legal action can then be taken against counterfeiters.
- Customs Recordation and Cooperation:
Recordation of trademarks with customs authorities enables them to identify and seize counterfeit goods at borders. Collaborating with customs agencies for information sharing and joint operations enhances the effectiveness of enforcement efforts.
- Online Brand Protection:
Implementing online brand protection strategies involves monitoring e-commerce platforms, social media, and other online channels for counterfeit listings. Sending cease and desist notices to online sellers and working with platform operators to remove infringing listings is crucial.
- Collaboration with Industry Partners:
Collaborating with industry associations, trade organizations, and other fashion brands can enhance collective efforts against counterfeiting. Sharing intelligence, pooling resources, and engaging in joint legal actions can be more impactful than individual endeavors.
- Civil Litigation:
Pursuing civil litigation against counterfeiters can result in damages, injunctions, and the removal of counterfeit products from the market. Civil actions send a strong message and act as a deterrent to potential counterfeiters.
- Criminal Prosecution:
In cases of severe counterfeiting, involving law enforcement for criminal prosecution is essential. This can lead to arrests, convictions, and the dismantling of large-scale counterfeiting operations.
- Consumer Education and Outreach:
Educating consumers about the risks of purchasing counterfeit goods and how to identify genuine products can help reduce demand. Public awareness campaigns, both online and offline, play a role in shaping consumer behaviour.
- Technological Solutions:
Leveraging technology, such as blockchain and RFID, can help trace and authenticate products throughout the supply chain. This transparency can deter counterfeiters and assist in legal actions against them.
Here are some notable Indian cases that have had a significant impact on intellectual property rights in the fashion industry:
- Crocs Inc. v. Liberty Footwear Company (2016):
Type of Case: Design Infringement
Significance: The case highlighted the significance of design registrations in resolving disputes over design infringement. It emphasized the need for robust design protection for aesthetic innovations in the fashion industry.
- Raymond Limited v. Raymond Pharmaceuticals (2010):
Type of Case: Trademark Dispute
Significance: This case addressed the issue of likelihood of confusion in the fashion market. It underscored the importance of trademark registration and protection for building and maintaining brand identity in the fashion industry.
- Micolube India Ltd. v. Rakesh Kumar Trading as NR International (2009):
Type of Case: Passing Off
Significance: In this case, the court addressed the issue of passing off in the context of fashion products. It emphasized the protection of goodwill and reputation associated with a brand in the fashion industry.
- Wockhardt Limited v. Torrent Pharmaceuticals Limited (2009):
Type of Case: Patent Infringement
Significance: While not directly related to the fashion industry, this case highlighted issues related to patent infringement. It demonstrated the importance of patent protection, even in industries beyond fashion, for encouraging innovation and protecting intellectual property.
- Christian Louboutin SAS v. Abubaker (2018):
Type of Case: Trademark Infringement
Significance: The case involved the famous red-soled shoes of Christian Louboutin. It demonstrated the challenges and importance of trademark protection, including the distinctiveness of colour as a trademark in the fashion industry.
It is important to note that the legal landscape is continuously evolving, and new cases may emerge that further shape the protection of intellectual property rights in the Indian fashion industry. Additionally, many cases related to intellectual property involve a mix of legal issues, and the impact on the fashion industry may be one aspect of the overall legal dispute.
Conclusion:
In the kaleidoscope of India’s fashion industry, intellectual property rights serve as the guardian of creativity, tradition, and innovation. Navigating the complexities of copyright, design protection, trademarks, and geographical indications requires a nuanced understanding of Indian intellectual property laws. As the industry continues to evolve, designers and stakeholders must leverage the legal framework to foster a culture of respect for intellectual property, ensuring the continued flourishing of India’s rich and diverse fashion heritage.
References:
https://enhelion.com/blogs/2023/05/12/recent-trends-in-ip-infringement-in-the-fashion-industry/
https://www.wipo.int/wipo_magazine/en/2018/04/article_0006.html
https://theamikusqriae.com/the-significance-of-intellectual-property-rights-in-the-fashion-industry/
https://www.e-startupindia.com/learn/intellectual-property-rights-in-the-fashion-industry/
https://ipwatchdog.com/2017/03/22/copyrights-supreme-court-star-athletica-v-varsity-brands/id=79767/
https://www.lexology.com/library/detail.aspx?g=84a8b542-3028-4f03-afc1-1596c8eef926